Re Waters - [2005] VSC 443

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1527 of 2004

IN THE MATTER of the Bail Act 1977

And

IN THE MATTER of an application for bail by RICK ANTHONY WATERS

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JUDGE:	Hollingworth J
WHERE HELD:	Melbourne
DATE OF HEARING:	25 October 2005
DATE OF JUDGMENT:	26 October 2005
CASE MAY BE CITED AS:	Re Rick Anthony Waters
MEDIUM NEUTRAL CITATION:	[2005] VSC 443

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CRIMINAL LAW – bail – murder – strong provocation defence – delay – exceptional circumstances made out – bail granted

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M Gamble	Solicitor for Public Prosecutions
For Rick Anthony Waters	Mr J Kennan SC Mr D Laschko	D Laschko

HER HONOUR:

This is an application by Rick Anthony Waters for bail until the trial, which has been set down for hearing on 20 February 2006. The applicant has been charged with the murder of his father, Edward Waters, on 19 February 1996. His father was 70 years old at the time. The applicant was charged on 3 August 2004 and has been in custody since that date. Early this year he was committed to stand trial.

He has made two previous applications for bail, one before Gillard J in December 2004 and one at his committal. Both were unsuccessful.

The applicant was born on 31 December 1958 and is presently aged 46. At one point he was in the navy, but he left the navy in the late 1970s and since then has been occupied primarily in the building industry.

It is perhaps trite to state that the general principle is that a person accused of an offence is entitled to bail. However, where the person is charged with certain specified offences, such as murder, the position is reversed. In this case the applicant must satisfy me that exceptional circumstances exist which would justify the granting of bail.

Even if exceptional circumstances are made out, the court must refuse bail if it is satisfied that there is an unacceptable risk that if the applicant is released on bail he may commit one or more of the following: fail to answer bail, commit an offence whilst on bail or interfere with a witness. The burden of establishing unacceptable risk lies on the Crown. In the present case, the Crown argues that exceptional circumstances do not exist and opposes bail accordingly. However, the Crown does not argue that there is any unacceptable risk in this case.

The Act does not define what exceptional circumstances are and it is perhaps trite to say that it depends on the circumstances of each case. There must be factors present which take the case out of the norm and which would answer the description "exceptional".

However, the two enquiries often overlap in the sense that the unacceptable risk factors in a given case may be considered when determining whether exceptional circumstances exist.

I will briefly set out the circumstances relating to the death…

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 Waters

Details

AGLC: Re Waters [2005] VSC 443
Case: [2005] VSC 443
Decision Date: 26 October 2005

CaseChat Overview and Summary

The matter of Re Waters involved the defendant, who had been charged with murder. The central issue in this case was whether the defendant should be granted bail pending trial. The defendant's case for bail was complicated by the severity of the charge and the presence of a strong provocation defence, which required the court to consider both the seriousness of the offence and the defendant's prospects of successfully raising the defence. The court was also required to weigh the defendant's arguments regarding the exceptional circumstances that warranted bail, which included the delay in the trial process and the defendant's personal circumstances. The Court of Appeal considered these factors and concluded that the exceptional circumstances made out by the defendant were sufficient to warrant the grant of bail.

The primary legal issues the court had to address included the criteria for granting bail in cases involving serious charges such as murder, the impact of a strong provocation defence on the bail decision, and the relevance of exceptional circumstances in the context of the defendant's personal and procedural arguments. The court had to balance the presumption against bail in serious criminal cases with the defendant's right to liberty and the potential for a successful provocation defence. Furthermore, the court needed to determine whether the delay in the trial process and the defendant's personal circumstances constituted exceptional circumstances that warranted bail.

In reaching its decision, the court meticulously analysed the arguments presented by both parties. It found that the delay in the trial process, coupled with the defendant's personal circumstances, constituted exceptional circumstances. The court recognised the potential for the defendant to successfully raise the strong provocation defence and considered this alongside the other factors. Ultimately, the court concluded that the exceptional circumstances made out by the defendant were compelling enough to warrant the grant of bail. The court held that the defendant's right to liberty, the potential for a successful defence, and the exceptional circumstances presented a strong case for bail. The court granted the defendant bail, subject to certain conditions.

Orders