Re Unumadu
[2007] VSC 258
•23 July 2007
| 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
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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 | |
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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).
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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 incarceration can itself constitute exceptional circumstances.
[1]R v Stephen Allan Cox [2003] VSC 245
Mr Rochford submitted that the Crown case is essentially weak and that the so‑called confession suffers from having been brought forward later and only after a reward was offered for information.
The Crown tendered two letters from persons connected with the case expressing views that the accused should not be granted bail for various reasons. Material of this kind is troubling. On the one hand, as the rules of evidence do not apply to a bail application, such material may be looked at. On the other hand, expressions of opinion by persons intimately connected with the case, perhaps especially a criminal case, are seldom objective and must be viewed somewhat sceptically. If it is sought to rely upon evidence from such sources, it would be more acceptable if it was put on affidavit and the deponent made available for cross‑examination. Absent these protections, such material must be given little, if any, weight. In this case I have disregarded those letters entirely.
However, I am not prepared to accept Mr Rochford's submission that the Crown case is weak. Experience shows that circumstantial cases are by no means ipso facto weak and whilst it is impossible to undertake a thorough analysis of the Crown case such as this on an interlocutory application, it seems clear that there are a number of matters here which will be able to be relied upon by the Crown and which will strongly support its case. I am referring generally to matters set out in the summary exhibited to the affidavit of Mr Atkinson, Exhibit PA1. It is inappropriate that I detail these matters further or seek to characterise the Crown case by the use of any particular adjective having regard to the fact that the trial is now only a few months away.
Mr Rochford submitted that the accused ought not be regarded as a flight risk, given that he could have fled any time after he was interviewed in 2003 and before he was charged in 2006. This may be a valid point but, on the other hand, the Crown case could not have been as fully understood by the accused during that period as it is now. I am not prepared to hold that the accused is not a flight risk, nor am I prepared to hold that he does not pose an unacceptable risk of interfering with witnesses or otherwise obstructing justice. Senior Detective Day, the police investigator, deposed to a number of matters which, although hearsay, raise serious issues concerning the accused's conduct outside this case since 2003.
Had I not had the reservations I have expressed as to the accused himself, which reservations go directly to the matters set out in s 4(2)(d) of the Bail Act 1977, I would have granted bail. The length of the time he has been and will be incarcerated constitutes exceptional circumstances justifying bail within the meaning of s 13(2)(b) of the Act. Unfortunately, however, he does not satisfy the requirements of s 4(2(d) as to unacceptable risk.
Bail is refused.
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