Re Taylor

[2007] VSC 41

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1428 of 2007

IN THE MATTER of the Bail Act 1977

and

IN THE MATTER of an application for bail by HAROLD TAYLOR

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JUDGE:	BONGIORNO J
WHERE HELD:	Melbourne
DATE OF HEARING:	13 February 2007
DATE OF JUDGMENT:	13 February 2007
CASE MAY BE CITED AS:	Re Harold Taylor
MEDIUM NEUTRAL CITATION:	[2007] VSC 41

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CRIMINAL LAW – Bail – Exceptional circumstances established – Bail granted with conditions - Bail Act 1977 s 13.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr T. Forrest QC	Galbally & O’Bryan
For the Respondent	Ms M. Williams SC	OPP

HIS HONOUR:

1. On 7 February 2007, the applicant, Harold Adrian Taylor, was charged with the murder of his three-month old baby daughter on 6 February. He was remanded in custody and appears today before this court seeking bail. Section 13 of the Bail Act 1977 reserves the question of bail to a person charged with murder to this Court or a judge of this Court, at least until after a magistrate has committed the person for trial. The grant of bail is conditional upon the Court or the judge being satisfied that exceptional circumstances exist which justify the making of such an order.

1. Mr Taylor puts his case for bail relying upon a number of matters which he says together demonstrate the exceptional circumstances of which the Court must be satisfied. 

1. The principal matter relied upon by Mr Taylor is what his counsel, Mr T. Forrest QC, described as the weakness of the Crown case.  To this Mr Forrest added the undue hardship which would be endured by Mr Taylor were he to be on remand for what would be a period of greater than a year and, depending on variables not yet ascertained, perhaps a much longer period; the grief he and his family are suffering as a result of his daughter's death; his desire to attend the funeral to be held tomorrow or shortly thereafter; his prior history; his employment; his capacity to provide a substantial surety and the fact the Crown has no concerns as to flight or the commission of criminal offences.

1. As far as the strength of the Crown case is concerned, for obvious reasons it is not appropriate in a decision with respect to bail to canvass the evidence in any detail.  Although the police have laid a charge of murder against Mr Taylor, it is clear that their investigations are far from complete.  These investigations may strengthen the case of murder against him or they may reduce it.  These investigations may result in a different charge being substituted for the murder charge now pending, or they may not.  Of course, whether a Crown prosecutor will sign a presentment for murder or some other offence is unknown.

1. It is sufficient for present purposes to conclude that on the state of the evidence as it currently exists, the Crown case could not be said to be strong, particularly perhaps with respect to the mental element of murder.  The submission to the contrary of the Crown prosecutor can't be accepted; it appears to have been based on a misunderstanding of the sparseness of the evidence at present before the Court.

1. Much will depend ultimately upon the considered opinion of the pathologist.  Currently the evidence before the Court is that he cannot exclude the possibility that the injuries from which the child died were caused by accident. 

1. It is notorious that persons charged with the murder of small children are required to be separated from other prisoners on remand in the prison system for their own physical protection.  This means that their incarceration is more of a hardship than it would otherwise be.  Here a remand is highly likely to exceed 12 months, in all of which time Mr Taylor would be in what is referred to by the prison authorities as "protection".  Alone, this may not constitute exceptional circumstances but it must be considered with other factors in determining whether those circumstances exist.

1. Mr Taylor is concerned that if he is remanded in custody he will not be able to attend his daughter's funeral which may be held as early as tomorrow.  Initially, the police informant swore that Mr Taylor could apply for leave to attend the funeral; subsequently during the hearing and only as a result of prompting from the Court, this possibility of Taylor being permitted by prison authorities to attend the funeral was converted to a probability.  The matter is of small or perhaps even no moment in the overall assessment of the circumstances of this case. It is mentioned only because it was a matter debated on Mr Taylor's application and was the subject of some evidence by the Crown.

1. Mr Taylor's prior history, his employment and the apparent stability of his residence within the jurisdiction appear to have eliminated any fears the Crown may have entertained as to what might be called the usual matters of concern on a bail application.  To these may be added his capacity to provide a significant surety.

1. Although the police informant referred to the possibility of interference with witnesses should Mr Taylor be released on bail, this matter was not pressed by the Crown prosecutor; it can thus be safely assumed that any concerns in this regard can be adequately dealt with by appropriate conditions.

1. When the state of the Crown case is considered, together with the other matters to which reference has been made, the Court is satisfied that exceptional circumstances exist so as to entitle Mr Taylor to bail with an appropriate surety. 

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