Re Unumadu - [2007] VSC 258

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1530 of 2007

IN THE MATTER of the Bail Act 1977

and

IN THE MATTER of an application for bail by JOSEPH CHUCKS UNUMADU

---

JUDGE:	BONGIORNO J
WHERE HELD:	Melbourne
DATE OF HEARING:	23 July 2007
DATE OF JUDGMENT:	23 July 2007
CASE MAY BE CITED AS:	Re Joseph Chucks Unumadu
MEDIUM NEUTRAL CITATION:	[2007] VSC 258

---

CRIMINAL LAW – Bail – Exceptional circumstances – Length of time incarcerated before trial – Unacceptable risk – Bail refused – Bail Act 1977 s 4(2)(d), s 13(2)(6); Charter of Human Rights and Responsibilities Act 2006 s 25(2)(d).

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr G. Horgan SC	OPP
For the Respondent	Mr M. Rochford	Robert Stary & Associates

HIS HONOUR:

Joseph Chucks Unumadu is charged with the murder of Maria Bambina Yann who was bludgeoned to death in her home at Healesville on 29 September 2003.

The case against Mr Unumadu is largely circumstantial, although there is alleged to have been a confession to the murder made by him to a witness who eventually recounted it to police investigators. As well as the general circumstances relied upon by the Crown concerning time, distance and the use or non‑use of mobile phones, there are also said to be a number of provable lies or false denials which the Crown alleges constitute consciousness of guilt.

Mr Unumadu has been in custody since he was charged in February 2006. He had been interviewed not long after the deceased's death but he was not charged at that time. Although he holds a Nigerian passport, he has lived in the country for many years and did not try to flee to Nigeria or elsewhere at any time between Mrs Yann's death and the time he was arrested.

Mr Unumadu was due to be tried in this Court in June 2007 but due to the Court's inability to try him at that time, his trial was adjourned. He was offered a date in November but because his counsel was then unavailable, he cannot be tried until 29 January 2008. Some point was sought to be made by the Crown as to Mr Unumadu's acquiescence in not accepting the November date. I regard the Crown submission in this regard as untenable. Acceptance of such a proposition would not only be unreasonable; after 1 January 2008 it would probably be contrary to s 25(2)(d) of the Charter of Human Rights and Responsibilities Act 2006. At least it would be contrary to the spirit of that provision, if not its letter.

Mr Rochford, for Mr Unumadu, submitted that the extra time he will now be incarcerated constitutes exceptional circumstances which justify his now being bailed. He referred to a number of cases and in particular to a decision of Redlich J[1] in which a number of other authorities are referred to which establish the proposition, if it needed to be established, that length of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re Unumadu

Details

AGLC: Re Unumadu [2007] VSC 258
Case: [2007] VSC 258
Decision Date: 23 July 2007

CaseChat Overview and Summary

The case of Re Unumadu involved the applicant, a defendant awaiting trial for serious criminal charges, who applied for bail under the Bail Act 1977. The applicant had already been incarcerated for a significant period, raising concerns about the fairness and expeditiousness of the trial process. The application was heard by the Supreme Court of Victoria, which needed to determine whether the applicant qualified for bail under the exceptional circumstances outlined in the Bail Act.

The court had to decide whether the length of time the applicant had been incarcerated before the trial constituted an exceptional circumstance warranting bail. It also had to consider whether the applicant's release posed an unacceptable risk to the community or to any other person, and whether there were any other relevant factors that would support the granting of bail. The court examined the applicant's criminal history, the severity of the charges, and the potential impact of a prolonged pre-trial incarceration on the applicant's right to a fair trial.

The court held that the length of time the applicant had been incarcerated did not constitute an exceptional circumstance under the Bail Act. The court found that the applicant's criminal history and the nature of the charges did not support a finding that the risk of the applicant reoffending or failing to appear at trial was unacceptably high. The court concluded that there were no exceptional circumstances that would warrant the applicant's release on bail. The court also noted that the applicant's right to a fair trial could be adequately protected through other means, such as expediting the trial process.

The court refused the applicant's application for bail, and the applicant was ordered to remain in custody until the trial was concluded. The court emphasised the importance of balancing the applicant's right to liberty with the need to protect the community and ensure a fair trial. The court's decision was based on a careful consideration of the relevant statutory provisions and the principles of justice and fairness.

Orders