Re Smith
[2021] VSC 485
•12 August 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0199
| IN THE MATTER of the Bail Act 1977 (Vic) |
| -and – |
| IN THE MATTER of an Application for Bail by JAMIE SMITH |
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JUDGE: | Tinney J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 10 August 2021 |
DATE OF JUDGMENT: | 12 August 2021 |
CASE MAY BE CITED AS: | Re Smith |
MEDIUM NEUTRAL CITATION: | [2021] VSC 485 |
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CRIMINAL LAW – Bail – Causing explosions likely to endanger life – Detonation of pipe bombs in residential streets in the early evening – Property damage caused but potential for injury or death – 29 year old accused with some criminal history – Stable residence, relationship and employment – Strength of prosecution case – Long delay – Compelling reason not made out – Unacceptable risk in any event – Bail Act 1977 ss 1B, 3AAA, 4C, 4D, 4E.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J Lavery | Greg Thomas Barrister & Solicitor |
| For the Respondent | Mr A Sprague | Ms A Hogan, Solicitor for Public Prosecutions |
HIS HONOUR:
Introduction
The applicant applies for bail on a number of charges he faces in connection with the detonation of eight explosive devices in the suburbs of Melbourne on the night of 4 July 2021. In total there are 24 charges, three in respect of each explosion. There are eight charges of causing an explosion likely to endanger life,[1] eight charges of reckless conduct endangering life,[2] and eight charges of reckless conduct endangering serious injury.[3] The reckless conduct charges are laid in the alternative to the charges of causing an explosion likely to endanger life. The maximum penalty for causing an explosion likely to endanger life is imprisonment for 15 years.
[1]Crimes Act 1958, s 317(2).
[2]Ibid s 22.
[3]Ibid s 23.
It is agreed between the parties that the Court is required to refuse bail unless satisfied that a compelling reason exists that justifies the grant of bail. This is because the applicant is accused of a Schedule 2 offence within the meaning of the Bail Act 1977 (‘the Act’).
Procedural summary
The applicant was arrested and charged on 15 July 2021. He made an application for bail on 17 July 2021 which was refused on the basis that he had not shown a compelling reason. The matter is next listed for the hearing of a committal mention at Melbourne Magistrates’ Court on 7 October 2021.
The only co-accused at the time of the hearing of the application was the applicant’s brother Raymond Smith. He was charged on the same day as the applicant, and an application for bail was refused on the same day as that of the applicant.
On 12 August 2021, a third alleged offender, Rhys Molnar, was arrested and charged with the same offences as the applicant and his brother. He was remanded in custody and has thus far brought no application for bail.
Summary of alleged offending
On the evening of Sunday 4 July 2021, between the hours of 7.13pm and 9.45pm, eight explosive devices were detonated in residential streets in Heidelberg, Northcote, Ivanhoe and Kew in what is alleged to be a coordinated, well-planned series of attacks upon property. Examination of the crime scenes would indicate that each of the explosive devices was a pipe bomb constructed from a length of ‘Brasshand’ brand galvanised pipe, filled with sparklers and sealed with end caps. The explosions were detonated by the use of sparklers fitted through small holes drilled in the end caps. The sparklers would then have been lit, causing the combustion of the sparkler fragments inside the pipe. The rapidly increasing pressure caused the pipes to shatter, sending shrapnel for a considerable distance.
The events in sequence were as follows:
i.Altona Street, Heidelberg West. At 7.13pm, a pipe bomb was detonated in the exhaust of a parked vehicle. Residents recovered shrapnel on the street and footpath.
ii.Helier Street, Heidelberg Heights. At 7.22pm, a pipe bomb was detonated inside a port-a-loo and destroyed it.
iii.James Street, Northcote. At 8.15pm, a pipe bomb was detonated on or inside a wheelie bin on a kerbside. The explosion split the bin apart and spread debris around the area. CCTV footage showed a dark coloured Nissan Patrol seemingly loitering 20 metres from the scene immediately before the detonation with its headlights off. The vehicle left the scene immediately afterwards. The vehicle had a number of very distinctive features consistent with those later observed on a Nissan Patrol owned by the applicant.
iv.Hillside Avenue, Northcote. At 8.30 pm, a resident heard an explosion out the front of her residence. A gas bottle she had left on the nature strip had been knocked over, a piece of metal shrapnel was on the ground next to it, and a circular cap was on the footpath nearby. Shortly after the explosion, another neighbour observed a vehicle described as an ‘off white, older, possible 1980s Toyota Landcruiser’ leaving the area.
v.Maltravers Road, Ivanhoe. Between 8.50and 8.54pm, a female resident heard a ‘loud boom’ and observed a flash though her front window. She investigated and observed that her letter box had been blown apart. Immediately after the explosion, a neighbour observed two vehicles on the side of the road opposite the explosion, one of them being a dark coloured 1990s Nissan Patrol with a partial registration of ISU6X.
vi.Kilby Road, Kew East. Between 9.20 and 9.23pm, a resident heard a loud bang outside, and then observed that a pipe bomb had been detonated inside a washing machine sitting on the tray of his ute. The explosion had caused extensive damage to the washing machine, scattering glass and other debris up to 80 metres away.
vii.Malmsbury Street, Kew. Between 9.25 and 9.30pm, a pipe bomb was detonated in a port-a-loo, destroying it.
viii.Studley Park Road, Kew. At 9.45pm, a loud explosion was heard by residents. The next afternoon, a resident observed that the sun roof of his vehicle had been smashed, and found the remnants of a pipe bomb in the rear of the vehicle.
Investigation and arrest
Between 5 and 7 July 2021, the police received anonymous information through Crime Stoppers that the applicant’s brother Raymond Smith (‘Raymond’) was responsible for the explosions, that he had bragged about his involvement, and that he had put footage of the explosions on Snapchat.
On 15 July 2021, a search warrant was executed at the applicant’s residence in Bundoora. The applicant was at work with his father at the time. He answered a call from the police on his mobile phone. He returned home shortly after on foot by scaling the back fence, while his father returned in the applicant’s Nissan Patrol. The applicant did not provide his mobile phone or its location to the police.
During a search, the applicant’s grey 1995 Nissan Patrol with registration ‘1SR6PU’ was seized. Inside the vehicle, the police found two partially stripped sparkler wires and a red cigarette lighter. From the rear seat, police collected sufficient sparkler fragments to fill two vials. The mobile phone of the applicant was not recovered, and is believed to have been secreted or disposed of by him between answering the police call and arriving home.
A review of CCTV footage at the applicant’s residence indicates that the applicant departed that location in his Nissan vehicle at 7.18pm on 4 July 2021, that is, five minutes after the first, and four minutes before the second, explosion. He was seen to arrive home at the premises, alone in the vehicle, at 10.25pm, some 40 minutes after the last of the detonations.
A preliminary analysis of the records for the applicant’s mobile phone shows a call made from his number to his brother at 7.34pm when the applicant’s phone was in Ivanhoe and the brother’s was in Heidelberg Heights. The records also indicated text messages sent from the applicant’s girlfriend’s phone to the applicant at 8.32pm, 8.41 pm and 9.48pm when his phone was in Fairfield, Ivanhoe and Kew respectively. At 10.09pm, he sent a text message to his girlfriend when he was in Heidelberg, consistent, on the prosecution case, with his being on the way home to Bundoora after the last of the detonations.
There is analysis pending of a number of exhibits, including Raymond’s mobile phone, components of the explosive devices collected at the crime scenes, and the sparklers found in the applicant’s car and the residue of sparklers found at the crime scenes.
The applicant was arrested on 15 July 2021 and taken into custody. He provided mostly no comment in his interview, but did admit to owning the Nissan Patrol.
In the remand summary prepared for the purposes of the initial remand on 15 July 2021, the fact of information having been provided to Crime Stoppers identifying Raymond as the offender and claiming that he had put footage on social media was disclosed. The platform referred to was not identified.
On 21 July 2021, that is, four days after his unsuccessful bail application, at which the remand summary was relied upon, the applicant made an Arunta call from prison to his girlfriend, Shae Purchall (‘Purchall’). He directed her to access Raymond’s Snapchat account. In a call on 23 July 2021, he gave her the account details again and urged her to ‘make sure you get it done. Don’t let Matika[4] know’. On 24 July 2021, the applicant asked Purchall, ‘How’d you go with that thing I asked you to do’. She told him, ‘All done’. In a call on 29 July 2021, when the applicant telephoned Purchall, Raymond could be heard in the background of the call. The applicant asked Purchall to call Jayden, to give him the Shapchat details and to get him to delete the videos.
[4]Raymond’s partner.
On the prosecution case, these Arunta call represented efforts by the applicant to arrange for the destruction of evidence.
Personal background and criminal history
The applicant, who is now 29, was born in Melbourne and grew up in Ivanhoe. He has two siblings, his older brother Raymond, and a younger sister. He was educated until Year 7 in the mainstream education system before spending some time, the length of which was not indicated in the application, at Lynall Hall Community School in Richmond, which is apparently a small, progressive, government secondary school. While at this school, the applicant met the co-offenders with whom he committed an armed robbery which is a feature of his criminal history.
That history commenced in the Children’s Court when the applicant was only 12 and comprises findings of guilt on 32 charges arising from 9 court appearances. The most significant matter was the armed robbery for which the applicant received probation in 2007 when he was 15. Later, in the Magistrates’ Court jurisdiction, the applicant accrued a number of convictions for the fraudulent use of number plates, driving unregistered vehicles, unlicensed driving, and, on two occasions, failing to answer bail.
He apparently spent some time in Parkville Youth Justice Centre in relation to the armed robbery matter. Upon his release, he lived with his girlfriend away from his family home. Later, his parents separated. In recent times, his father has had some difficulties. The applicant in effect set up a house for himself, his partner of 4 years, their 15 month old child and his father. They have lived at the applicant’s Bundoora address for two years. He spends time there and with his mother at her home in Ivanhoe. Ms Purchall gave evidence at the initial bail application, but not before me, although she was in attendance. I am told she is supportive of the applicant.
All I was told of the employment history of the applicant was that he has been working full-time at Pastry Maker since June 2020, initially as an operator but more recently as a Key Operator/Supervisor. There is still a position available to the applicant with this establishment.
The law
Section 1B of the Act sets out the guiding principles of the legislation, which include maximising community safety, and taking account of the presumption of innocence and the right to liberty.
Section 4 of the Act provides:
A person accused of an offence, and being held in custody in relation to that offence, is entitled to be granted bail unless the bail decision maker is required to refuse bail by this Act.
Section 4AA sets out situations in which the show compelling reason test applies to a decision whether to grant bail. As already indicated, that test applies to this application. As a result, s 4C(1A) dictates that the Court must refuse bail unless satisfied that a compelling reason exists that justifies the grant of bail. The applicant bears the onus of satisfying the Court as to the existence of a compelling reason.[5] In determining whether a compelling reason exists, the Court must take into account the surrounding circumstances,[6] including, but not limited to, those prescribed in s 3AAA(1) of the Act.
[5]Section 4C(2).
[6]Section 4C(3).
If satisfied that a compelling reason exists, the Court must then apply the unacceptable risk test pursuant to s 4D(1)(a) of the Act. Bail must be refused if the Court is satisfied by the respondent that there is a risk that the applicant would engage in any of the conduct outlined in s 4E(1)(a) and that such a risk is an unacceptable risk.
In applying the unacceptable risk test, the Court must again have regard to the surrounding circumstances in s 3AAA(1) of the Act and consider whether there are any conditions of bail that might be imposed to mitigate the risk so that it is not unacceptable, pursuant to s 4E(3) of the Act.
Meaning of compelling reason
In considering the meaning of the phrase ‘compelling reason’, it is not necessary to look beyond what was said on the matter by the Court of Appeal in Rodgers v The Queen:[7]
There was no dispute between the parties on this appeal concerning the principles to be applied when considering the compelling reason test. For present purposes, those principles may be summarised as follows:
(1)For an applicant for bail required to show a compelling reason, a synthesis or balancing of all relevant matters (including those identified in s 3AAA) must compel the conclusion that the applicant’s detention in custody is not justified.
(2)It is not, however, necessary for an applicant required to show a compelling reason, to show a reason which is irresistible or exceptional.
(3)A compelling reason is one which is forceful and therefore convincing – a reason which is difficult to resist.[8]
[7][2019] VSCA 214.
[8]Ibid [43].
The evidence
The informant Detective Senior Constable Holloway from the Arson and Explosives Squad gave evidence before me. Amongst other things, he elaborated on the evidence which leads him to the view that the applicant’s vehicle is the vehicle seen in CCTV footage seemingly connected with the James Street crime scene. In short, he indicated that some aftermarket accessories present on the applicant’s vehicle and also on the vehicle in the CCTV footage were very distinctive, and in one case, unique. In cross-examination, he gave evidence about matters including some aspects of the circumstantial case, the likely time frame for the availability of further prosecution evidence being sought, and the likely timing of the committal and trial. In response to questions from me, he provided further information about the apparent make up of the explosive devices, and the evidence left at the crime scenes.
The applicant’s submissions
Mr Lavery for the applicant relied upon a combination of matters in proof of the existence of a compelling reason. These were:
a)Delay. This was the central factor relied upon, and one which, on the submission of Mr Lavery, would be sufficient to amount to a compelling reason ‘in its own right’.[9] He submitted that the earliest the trial would proceed would be 2023. The long delay is made all the more significant by the fact that the applicant is spending his first time in adult custody, and that conditions have been particularly onerous in custody due to COVID-19, restricting his opportunity for any meaningful contact with his partner and child and otherwise limiting his opportunities in custody.
b)The age and limited criminal history of the applicant. It was submitted that the applicant’s criminal history consists mainly of driving matters. The Children’s Court matters will not be able to be alleged as prior convictions, although Mr Lavery acknowledged that there is a finding of guilt for armed robbery, and that this and the other Children’s Court priors are relevant for the purposes of the bail application. As for the charges of failing to answer bail, these were some years ago and the grants of bail were in respect of summary matters.
c)The personal circumstances of the applicant. He is in a long-term relationship, has a young child, and has employment to which he will be able to return upon release. He lives in stable accommodation.
d)The strength of the prosecution case. Mr Lavery submitted that the case is a circumstantial one, the full details of which are yet to be revealed. Whilst there may be strong circumstantial evidence to indicate the applicant’s vehicle was connected with the crimes, it would be a significant step to prove that he himself was involved. Just because he was seen to be the driver of the vehicle when it departed from and arrived back at his home that night does not mean that he was the driver of the vehicle between these two times. So, too, with the phone evidence. Mobile phone analyses are notoriously difficult, it was submitted. It remains to be seen what the evidence will amount to. There is no DNA or fingerprint evidence currently in the case. The sort of risks which can arise in circumstantial cases are illustrated by the fact that the CCTV evidence now shows that the applicant could not have been at the scenes of the first two explosions, contrary to what was previously alleged.[10] Mr Lavery submitted that I would not be entitled to conclude that the prosecution case is a compelling one.
[9]Transcript 23.
[10]This is acknowledged by the informant in his second affidavit. He indicated in his evidence that he believed the first six charges would be withdrawn. That has not yet occurred, and whether it does will be a matter for the Office of Public Prosecutions.
Mr Lavery acknowledged in his submissions that the offences alleged are serious examples of the particular crimes.
On the question of unacceptable risk, Mr Lavery submitted that there would be conditions available to address any risk posed. There would be minimal risk of the applicant absconding, he would have a stable residence and employment, and conditions including a curfew would suffice to satisfactorily reduce risk.
The respondent’s submissions
Mr Sprague for the respondent submitted that the matters relied upon by the applicant are insufficient to establish a compelling reason justifying the release of the applicant on bail.
It was acknowledged that delay is a significant matter, but Mr Sprague submitted that it must be considered in light of the overall circumstances, including importantly the nature and seriousness of the offending and the strength of the Crown case.
As to the former, he submitted that these are serious examples of serious crimes. Multiple explosive devices were deployed over a period of time, at times and in locations where it might reasonably be expected that people might be around.
As to the strength of the case, Mr Sprague submitted that even as the evidence currently stands, and recognising that it is still early in the prosecution process, there is a compelling circumstantial case pointing to the guilt of the applicant.
As to the defence contention that there is a real risk that the applicant may serve more time in custody on remand than he would be ordered to serve if found guilty of the of the alleged offending, Mr Sprague refuted the contention, mainly because of the considerable seriousness of the offending and the resulting likelihood of a significant term of imprisonment.
On the matter of the personal circumstances of the applicant, including his relationship, place of residence and employment, these were all things which were in place at the time of the alleged offending. It is not a case where some underlying issue can be addressed by protective factors.
Turning to the question of unacceptable risk, Mr Sprague submitted that the very nature of the offending in this case, constituted by indiscriminate and repeated endangerment of the public is very relevant to the assessment of the risk posed by the applicant of endangering the safety of the public or offending whilst on bail. He showed a willingness to repeatedly endanger the safety of the public in the conduct alleged. His criminal history is also relevant. He is not a person of previous good character. Mr Sprague submitted that no conditions could be put in place which would adequately ameliorate the risk.
Mr Sprague also pointed to the risk of the applicant failing to answer bail, which concern was based largely on his two convictions for failing to answer bail. He did not, however, put this matter at the forefront of his submissions.
Analysis
In considering the question of whether the applicant has discharged the onus resting on him of proving that a compelling reason exists that justifies the grant of bail, I am of course required to have regard to the surrounding circumstances, as set out in the non-exhaustive list of matters in s 3AAA(1) of the Act.
I turn, now, to the first of these. The applicant is charged with offending involving the premeditated, planned, deliberate detonation of a large number of explosive devices in residential streets in the early hours of the evening. The motive behind the deployment of the devices is unknown. The focus was seemingly upon personal property which was destroyed in each of the blasts, but the potential for serious injury or death occurring was very real with each detonation. It is alleged that the applicant was one of at least four people in his vehicle as it was seen departing the last of the explosions in Kew. The indications are that a number of people were involved in the explosions. The timing, location and efficiency of the detonations would support my description of the offending as premeditated, planned and deliberate.
In my view, the evidence well supports the contention of the prosecution that these are serious examples of serious offences, a matter which was not challenged by the applicant.
Turning to the strength of the case, the few matters of circumstantial evidence set out earlier in this decision would be sufficient to make it clear, to my mind, that the respondent’s submission as to the strength of the case is correct. Bearing in mind that it is neither appropriate nor necessary in a bail application at this early stage to go into great detail about the strength of the case, much of which, of course, is yet to unfold, it would be difficult to see the current array of evidence as amounting to less than a compelling circumstantial case pointing to the guilt of the applicant.
Whilst not suggesting that the other matters amongst the list of circumstances in s 3AAA(1) are not also important, it is appropriate for me next to turn to the central consideration relied upon by the applicant, namely, the long delay which is likely in this case should it proceed to trial.[11] I note that where the delay is concerned, I take into account not only the length of the day, but the current onerous circumstances of remand, and the fact that this is the applicant’s first time in adult prison.
[11]Section 3AAA(1)(k).
Mr Lavery submitted that the delay of itself would be sufficient to make out a compelling reason in this case. I do not agree with this contention.
As indicated already, the law dictates that in considering whether a compelling reason exists, I am required to take into account the surrounding circumstances. That term is defined in s 3 of the Act by reference to s 3AAA. That provision indicates that the bail decision maker ‘must take into account all the circumstances that are relevant to the matter, including but not limited to, the following –‘. What follows then is what must be viewed as a non-exhaustive list of 14 surrounding circumstances, required to be taken into account if relevant in the particular case.
The submission of Mr Lavery seemingly implies that a consideration of one, only, of the surrounding circumstances of this case could dictate the outcome of this application by necessarily being sufficient to establish a compelling reason.
In El Nasher v DPP,[12] the Court of Appeal, albeit in the context of the question of unacceptable risk, noted:
There are 14 variables in s 3AAA (‘surrounding circumstances’) that must be considered, together with subsets within some of those variables; the weight given to those variables and their interaction with each other will vary from case to case. The end result will be a product of an informed, intuitive evaluation, and reasonable minds may well differ on that result.[13]
[12][2020] VSCA 144.
[13]Ibid [51].
It is clear to my mind that to approach an application for bail with the fixed view that a prospective delay of a particular magnitude would necessarily be sufficient to constitute a compelling reason would be to adopt an approach to the task which conflicts with the law.
There is of course no question that the matter of the likely delay in this case is a significant consideration in this application. It cannot be forgotten, however, that the delay is but one of a number of relevant matters to consider, and that it would be wrong to consider it in isolation. Of particular importance, of course, are the first two matters in s 3AAA(1) of the Act with which I have already dealt. Important, also, is the consideration in part (l) of the subsection, concerning the likely sentence to be imposed should the applicant be found guilty.
Therefore, when considering the regrettable fact that if not granted bail, the applicant faces being held on remand for a lengthy period of time, it is important to remember the seriousness of the crimes with which he is charged, the great danger to which those alleged crimes exposed the community, the apparent strength of the prosecution case, and the seeming reality of the fact that if he proceeds to trial and is found guilty, a significant term of imprisonment would be the outcome.
None of that is to suggest that I would not take into account all of the surrounding circumstances of the case in the performance of the task with which I am confronted. Having done so, I am firmly of the view that the applicant has failed to discharge the burden resting on him of proving that a compelling reason exists that justifies the grant of bail.
That would be sufficient to dispose of this application. For completeness, I can indicate that had I come to consider the question, I would have been satisfied that the respondent had discharged the burden of proving that the applicant, if released on bail, would pose an unacceptable risk of endangering the safety of the public and committing offences whilst on bail. In brief elaboration of that, I consider that the offending alleged is disturbing and somewhat baffling. What could possess mature adults to engage in the sort of reckless conduct apparent in this case is mystifying. This conduct is far removed from adolescent experimentation with an explosive device. This is planned, systematic and organised offending. Those who engaged in it well knew the danger to which they were exposing innocent members of the public, and yet saw fit to repeat the conduct over and over. The risk of the applicant again engaging in the sort of conduct alleged should he be released on bail would be unacceptable.
Conclusion
For the reasons stated above, this application for bail must be refused.
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