Re Vucak
[2009] VSC 167
•27 April 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1441 of 2009
IN THE MATTER of the Bail Act 1977
and
IN THE MATTER of an application for bail by ANTE VUCAK
| ANTE VUCAK | Applicant |
| THE QUEEN | Respondent |
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JUDGE: | KAYE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 April 2009 | |
DATE OF JUDGMENT: | 27 April 2009 | |
CASE MAY BE CITED AS: | In the Matter of an application for bail by Ante Vucak | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 167 | |
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CRIMINAL LAW – Application for bail – Murder, attempted murder and affray – Whether exceptional circumstances – Youth of applicant – Applicant held in adult prison – Delay – Parity with co-accused – Gravity of charges – Bail Act 1977 ss 4(3), 13.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P Morrissey | Mr P Dwyer |
| For the Crown | Mr A Grant | Office of Public Prosecutions |
HIS HONOUR:
The applicant, Ante Vucak, has been charged with one count of murder, one count of attempted murder and one count of affray. Those offences are alleged to have been committed on 8 February 2009 at Diggers Rest Recreational Reserve.
The applicant is 18 years of age. He is one of nine young men, whose ages range from 15 to 20 years, who have been charged with those offences.
The applicant applies to this court for bail. Section 4(3) and s.13 of the Bail Act require that the applicant satisfy me that there are exceptional circumstances which would justify the grant of bail.
The Crown opposes bail primarily on the grounds that exceptional circumstances have not been established. In addition, it is put that there is an unacceptable risk that the applicant, if released on bail, would fail to surrender himself into custody in answer to his bail.
The circumstances of the offences for which the applicant has been charged have been set out in some detail in the helpful summary compiled by Detective Senior Constable Chapman, who is the informant in this matter. For the purposes of this application, they can be briefly summarised.
Some time before 8 February Kyle Nunan, who is 16 years of age and who is the younger brother of the deceased man Nathan Roberts-Nunan, was apparently involved in an altercation with an associate of a friend of the applicant. One week before 8 February, the applicant contacted Kyle Nunan via the internet, and arranged to meet with him and have a fist fight with him at Diggers Rest skate park on 8 February. They agreed that no weapons would be brought to, or used, at the fight. Notwithstanding that agreement, in the meantime the applicant recruited and organised that his co-accused attend at the reserve with him.
On 8 February, the applicant and his co-accused assembled at an address at St Albans. At that address, there were a large number of weapons assembled, including knives, machetes, baseball bats, tool handles and other steel implements. In addition, the applicant and another co-accused had prepared two Molotov cocktails or petrol bombs using bottles for that purpose.
When the group met, the weapons were distributed to the co-accused. They then departed those premises in three vehicles, and set out for the reserve at which the applicant had arranged to meet with Kyle Nunan. En route, they stopped at a service station at Calder Park, at which the applicant took possession of a small sword. The applicant handed that sword to another co-accused to use in the forthcoming fight.
The party then proceeded to the Diggers Rest Recreational Reserve. Kyle Nunan had attended there with his elder brother, Nathan Roberts-Nunan, who was aged 20, and a friend of his brother, Stephen Thorneycroft, also aged 20. They had accompanied Kyle Nunan to the reserve to make sure that Kyle had a fair fight, and that no persons were seriously injured in it.
After the applicant and the co-accused had arrived at the reserve, the applicant and another put aside the two petrol bombs. The applicant and his co-accused then ran in the direction of the motor car in which the deceased man was sitting. They confronted the deceased, Thorneycroft and Kyle Nunan. By that stage, a number of the co-accused were wearing hoods and bandanas to disguise their appearance. Kyle Nunan was attacked and took flight. The applicant then struck Nathan Roberts-Nunan, who was then unarmed, to the upper arm with his machete. As a consequence, Nathan Roberts-Nunan took a club lock out of his car. Thereupon, he was struck on the head by a baseball bat wielded by a co-accused, Ogrizovic. In the meantime, another co-accused, Smith, who was carrying two boning knives, stabbed Thorneycroft in the stomach and then proceeded to stab the deceased in his lower back. The applicant and his co-accused then turned on the deceased's vehicle and damaged it. In the meantime, the deceased man collapsed to the ground. Later that day he died at the Royal Melbourne Hospital as a result of his stab wound. Mr Thorneycroft sustained serious wounds, including a laceration of the liver, and a puncture to his spleen, necessitating the removal of his spleen.
After the deceased man had collapsed, the applicant and his co-accused fled the scene. The deceased man's father confronted them in his car. The applicant responded by striking the deceased man's father’s car with his machete.
The party then decamped, and met at premises at Diggers Rest where they disposed of their weapons.
Subsequently, the applicant was arrested on 10 February. He was interviewed and made a statement and then charged with affray. He was released on bail.
The applicant was then re-arrested on 12 March, his bail was revoked and he was charged with murder and attempted murder. He was remanded for a committal mention to be held on 2 June next.
In his record of interview on 10 February, the applicant initially downplayed his role in the incident and also downplayed his knowledge of the fact that weapons were taken to the reserve by his co-accused. However, after there was a pause in the record of interview the applicant then made a clean breast of what had happened. He admitted that he had previously lied to the police and made a number of admissions which he repeated in a statement which he then signed.
Those admissions included the following: that he organised the co-accused to attend at the reserve; that he recruited those co-accused; that he prepared the two Molotov cocktails; that he knew that others were armed; that he took possession of the sword at the petrol station; that he armed himself with a machete; that he conducted reconnaissance of the reserve; that he ran to the group in which the deceased was standing; that the deceased was unarmed and that he struck the deceased in anger with his machete; that he was present when the deceased was stabbed; that he struck the deceased's car with his machete; and that he then ran off.
As I stated, the applicant and his eight co-accused have been charged with the same offences, namely, murder, attempted murder and affray.
So far, as a result of separate applications before Coghlan J of this Court, seven of the co-accused have been released on bail. The applicant and Smith are the only two of the accused who remain in custody.
I have read the three rulings made by Coghlan J, in which he granted bail to the seven co-accused. In essence, His Honour's reasons for doing so comprise principally the youth of the co-accused, the estimated delay before any trial takes place, the prospects of acquittal of the co-accused and the fact that they played lesser roles in the fatal events of 8 February.
Mr Morrissey of counsel, who appeared on behalf of the applicant before me, has submitted to me that there are exceptional circumstances justifying the grant of bail to the applicant. They consist, he argued, of the following: Firstly, the applicant is 18 years and four months old; he is a young man with no previous convictions; at the time of the offence he was employed as an apprentice toolmaker with Acron Engineering in the second year of his apprenticeship; and he comes from a good family.
Secondly, Mr Morrissey relied on the estimated delay before this matter comes on for trial. Coghlan J came to the view, which I respectfully share, that while it is possible the trial of this matter may take place in July 2010, it is more realistic to act on the basis that the trial will not take place until 18 months to 24 months hence.
Thirdly, Mr Morrissey submitted that the applicant, while he is young, has, nonetheless, been placed in an adult unit at the Port Phillip Prison.
Fourthly, he submitted that the applicant has strong family support. His parents and his sister will provide that support to him. His sister, Ivana, who gave evidence before me, has herself shown her commitment to her brother by suspending her university course, so as to be able to supervise the applicant and give him support should he be granted bail. In addition, there are a number of other family members and friends who are prepared to assist and support should the applicant be granted bail.
The fifth point made by Mr Morrissey is that, although the Crown case could not be fairly described as weak, nonetheless, it is not overwhelmingly strong. The applicant has a viable defence on the basis that he did not foresee or intend that the violence used at the reserve would involve the infliction of really serious injury or death.
And, sixthly, Mr Morrissey relied on the fact that seven of the co-accused have been granted bail. Mr Morrissey submitted that on the principle of parity, that although the applicant was an organiser of the gathering at the reserve, nonetheless his knowledge of the involvement of weapons and his intentions as to their use were no greater than those to whom bail has already been granted.
In those circumstances, Mr Morrissey submitted that in effect for the purposes of bail the position of the applicant is relevantly equal to those of the co-offenders to whom bail has been granted, and thus he has made out exceptional circumstances.
In my view, the first four matters pointed out by Mr Morrissey are well established as factual circumstances which are relevant on this application before me. The applicant is a young man. He has no previous convictions. He comes from a good background. He was in regular employment at the time of the matters which have led to his charge. If he is released on bail he would readily resume his employment with Acron Engineering. His father is employed there and would no doubt provide some level of supervision over him.
Secondly, and connected with that, if the applicant were released I am well satisfied that he would have good family support. I was very impressed with his sister, Ivana, both in her demeanour in giving evidence before me and in the sacrifice which she has been prepared to undertake for the benefit of her family and her brother.
Thirdly, as I have already indicated, I am regrettably satisfied that it is most likely that this matter will not come to trial for another 18 to 24 months. It is a matter of great concern that a young man should spend so long in custody before he comes to trial, and I agree with Mr Morrissey that that consideration of itself is of some weight in determining whether exceptional circumstances have been made out.
In stating that, it is appropriate that, like Coghlan J, I acknowledge and commend the excellent efforts of the informant, Detective Senior Constable Chapman, and the Crown, in sparing no effort to expedite the proceedings against the applicant and his co-accused. However, because of circumstances well beyond their control, the type of delay of which I have spoken it would seem to me, is regrettably inevitable.
Combined with that, it is a matter of concern that the applicant is spending at the moment his time in custody in an adult unit, rather than in a youth unit at Port Phillip Prison.
The other two circumstances relied on by Mr Morrissey relate to the circumstances of the offence. In assessing the Crown case, and in expressing any views about it, I do so with quite some diffidence. The authorities have wisely cautioned that a judge at this stage should say as little as possible concerning the possible outcome of a trial. Certainly I am not in a favourable position to express any concluded view as to that likely outcome, nor as to the prospects of either side in it.
Nonetheless, I have read sufficient of the materials to be able to agree with the concession made by Mr Morrissey that this is not an application in which the applicant can fairly submit that the Crown case against him is weak. It would seem to me, in light of the matters to which I have already referred, that the Crown case against the applicant is not weak. I do understand and accept that, as Mr Morrissey has pointed out, there is a potential defence based on the question of the applicant's knowledge, foresight and intention as to the degree of force to be used at the reserve and as to the degree of force which actually was used at the reserve. Beyond those two observations, I do not venture any other view. However, and relevantly, this is certainly not a case where the applicant's prospects of acquittal are such that, of themselves and standing alone, they constitute exceptional circumstances.
The other aspect of the case, and that on which it seemed to me Mr Morrissey principally relied, was the question of parity. Mr Morrissey submitted that, from the point of view of bail, the applicant's position is and should be viewed as being the same as that of the co-accused to whom bail has already been granted. He submitted that while it could be fairly said that the applicant knew the weapons were to be taken to the reserve, so too did the other seven co-accused to whom bail has been granted. Thus, he submitted that the applicant and the seven co-accused stand in the same position in respect of their knowledge and foresight; the Crown case against the applicant is no stronger against him than it is against the co-accused to whom bail has already been granted.
Mr Morrissey submitted in those circumstances the principles of parity require that co-accused be treated equally where relevantly their circumstances are equivalent.
In my view, on any view of the case, the role of the applicant in the incident and the lead up to it was substantially greater and more significant than that of any of the seven co-accused to whom bail has been granted. The applicant was clearly the instigator of the formation of the group of young men combining with weapons to attend at the reserve where the applicant had arranged to meet with Kyle Nunan. The applicant organised the attendance at the reserve of the co-accused and organised that they be armed with weapons. The weapons which were assembled for that purpose as part of his organisation were dangerous and potentially lethal. They included, as I said, weapons such as machetes, boning knives and home-made bombs.
In my view, the Crown is in a position to contend that it could well be foreseen that a collection of young men armed with such weapons was highly likely to result in violence which itself would have the consequence of the infliction of serious injury.
The applicant's role did not cease there. En route to the reserve he obtained a further weapon, a sword, in order to arm a co-accused who apparently at that stage did not have any weapons.
Equally, on arrival at the reserve it would seem that the applicant continued his role as the leader of the pack. He conducted a reconnaissance and then, armed with a machete, it would seem that he either led or was at the front of the charge of young men towards the group of people comprising the deceased man, Mr Thorneycroft and Kyle Nunan. The applicant had struck the first blow and he did so in circumstances in which the deceased man was unarmed. The applicant continued to evince some form of violence striking the vehicle of the deceased man.
Those matters are, in my view, important from the point of view of this application because they differentiate the position of the applicant from those of his co-accused. Firstly, in my view, they do reflect on the potential strength or otherwise of the Crown case. The applicant's role in instigating and organising the confrontation at the reserve will, of course, be relevant to the issues of his intention and state of mind as to what would or might occur at the reserve. The amount of young men to be involved and the type of weapons which they were organised to be equipped with will be all relevant to a determination of his state of mind as to what he intended and foresaw.
The applicant's role as a leader continued at the reserve. It was he who instigated the violence at the reserve and no doubt that will also go to his intention.
Each of those matters do differentiate the position of the applicant from those of the co-accused.
It was argued on behalf of the applicant by Mr Morrissey that Mr Ogrizovic also struck a blow to the deceased, he did so with a weapon more lethal than the applicant's and yet Mr Ogrizovic has been granted bail. However, Mr Ogrizovic was not an organiser in the way I have described. Further, he struck the blow after the applicant had first struck the deceased and at that stage the deceased was armed with a weapon.
Thus, in my view, there is not a relevant equivalence between the position of Mr Ogrizovic and the applicant.
The degree of involvement of the applicant in the offence is also relevant not simply from the point of view of differentiating his stance in the trial but also, in my view, of itself it affects the issues of parity for the purposes of bail. He is a man responsible for organising and instigating the violence which ensued. He was set apart from the position of the other seven co-accused. His greater role in instigating and organising the group of young men and in leading it in my view does raise the bar when I come to consider what may qualify as exceptional circumstances in this case.
On the question of risk of absconding, I agree with the submission by Mr Morrissey that there is no evidence put forward by the Crown which would satisfy me that there would be an unacceptable risk of the accused not answering his bail should he be granted bail. As I stated, he comes from a good background, has good family support and a number of conditions could be attached to his bail which would at least address, to some extent, the risk of him not attending.
On the other hand, a grant of bail always does carry with it some element of risk. Here, because of the matters to which I have just referred, I consider that the risk is a little bit higher than would ordinarily be so. The role played by the applicant in the events of 8 February could well cause the applicant to have anxiety both as to his prospects of acquittal, and also as to the extent of jeopardy in which he should stand should he be convicted.
Thus, while I am not satisfied that there is an unacceptable risk, nevertheless the risk is elevated to some extent because of the circumstances of the applicant's involvement in these offences.
I turn then finally to the question as to whether, having made those findings, exceptional circumstances are made out. Plainly, to be exceptional, circumstances relied on by an applicant must be sufficiently unusual or uncommon to set them apart from those ordinarily attaching to other persons who are charged. As I stated, I do not consider the question of parity with the seven other co-accused to whom bail has been granted to be a matter of any real weight; at best it is a matter of only minor weight because of the differences between the position of the applicant and that of the other seven of his co-accused to whom bail has been granted.
That then leaves me with the questions of the applicant's youth, his good background, his lack of previous convictions, his employment, the fact that he is placed in an adult gaol and delay. Those are each weighty matters of real substance and I must say that they have given me substantial pause and real anxiety in determining this matter. It is a matter of real concern that a man as young as Mr Vucak, with his background and with his prospects, if not granted bail would be kept in custody for an overly long period of time, particularly in an adult gaol. They are matters, as I say, which have given me real anxiety in determining this application.
However, nonetheless and notwithstanding the very strong and persuasive submission by Mr Morrissey, I am not satisfied that the circumstances established by the applicant do amount in a case such as this to exceptional circumstances so as to justify the grant of bail.
The role of the applicant, standing at the forefront of the planning and the leading of the armed confrontation by nine young men at a public reserve, using dangerous weapons, in a confrontation in which one man was killed and another seriously injured, is a matter of real concern. In the context of such a serious case, I do not consider that the matters such as youth, delay, background and being kept in an adult prison, while they are weighty, are sufficient to be properly characterised as exceptional.
So, with some hesitation it is my conclusion that bail should be refused.
Before departing this application, I should, however, make two remarks arising from what I have just said, and particularly arising from the questions of the applicant's youth, his current disposition and the potential delay in this case.
Firstly, as I stated, the Crown has done, it seems to me, everything it can do to expedite bringing these matters on as quickly as possible. I can say no more than encourage the Crown to continue in those efforts. So far as possible, the authorities should give consideration to priority to be given to the listing of both the committal and the trial of this proceeding.
Secondly, I am concerned about the placement of the applicant at the adult unit at gaol. In expressing that concern, I am not critical of the prison authorities, nor was Mr Morrissey. It is not for this court to instruct or tell prison authorities how to conduct their business. However, nonetheless, I do venture the view that, if it is at all possible, it is important and preferable that a young man such as the applicant be placed as soon as possible amongst the youth unit and that he not remain in the adult population of the prison.
Bearing those remarks in mind, my ruling is that the application for grant of bail should be refused.
I thank counsel for their assistance in this matter.
Anything else, gentlemen?
COUNSEL: No, Your Honour.
HIS HONOUR: Thank you.
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