Re Wetzler - [2023] VSC 626

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2023 0213

IN THE MATTER of the Bail Act 1977

– and –

IN THE MATTER of an application for bail by PETER WETZLER

BETWEEN:

PETER WETZLER	Applicant
and
DIRECTOR OF PUBLIC PROSECUTIONS	Respondent

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JUDGE:	CHAMPION J
WHERE HELD:	Melbourne
DATE OF HEARING:	18 October 2023
DATE OF JUDGMENT:	18 October 2023
DATE OF REASONS:	22 November 2023
CASE MAY BE CITED AS:	Re Wetzler
MEDIUM NEUTRAL CITATION:	[2023] VSC 626

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CRIMINAL LAW — Application for bail — Charge of murder — No criminal history — Cold case, investigation reopened — Weak prosecution case — Delay — Applicant resides interstate — Exceptional circumstances satisfied — Prosecution did not submit applicant posed an unacceptable risk — Unacceptable risk not established — Bail granted — Bail Act 1977 (Vic), ss 1B, 3AAA, 4, 4AA, 4E, 18, 18AA, 18AB.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	E Conditsis	Conditsis Lawyers
For the Respondent	K Churchill	Office of Public Prosecutions

HIS HONOUR:

Introduction

By application filed on 18 September 2023, Peter Wetzler [‘the applicant’] seeks a grant of bail from this court on a single charge of murder.

The applicant is 65 years of age and a resident of New South Wales. He seeks bail on the charge of murdering his then‑fiancée, Debra Campbell. The offence is alleged to have occurred in 1984, when the applicant was 26 years old and living in Victoria.

The respondent’s position in this application is that bail should be granted if the court is satisfied that exceptional circumstances exist. This position was provided by email on 11 October, and confirmed in oral submissions at hearing.[1] Furthermore, the respondent has not submitted that the applicant represents an unacceptable risk if he satisfies the exceptional circumstances test.
[1]The respondent’s initial position in respect of exceptional circumstances was: “Based on the material filed on behalf of the applicant to date, the respondent submits that the onus has not been discharged”.

Relevant bail history

On 31 August 2023, a Victorian magistrate issued a charge and warrant to arrest the applicant in relation to the charge of murder.

The applicant was arrested under the warrant on 6 September 2023 at his home in New South Wales. He was brought before the Belmont Local Court in New South Wales and granted bail for the purposes of extradition to Victoria,[2] on the following bail conditions:
[2]See section 83(8) of the Service and Execution of Process Act 1992 (Cth), which provides that if a warrant is produced, the magistrate must order either (a) that the person be remanded on bail on condition that the person appear at such time and place in the place of issue of the warrant as the magistrate specifies; or (b) that the person be taken, in such custody or otherwise as the magistrate specifies, to a specified place in the place of issue of the warrant. The Bail Act 2013 (NSW) applied to the…

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 Wetzler

Details

AGLC: Re Wetzler [2023] VSC 626
Case: [2023] VSC 626
Decision Date: 18 October 2023

CaseChat Overview and Summary

The applicant, Mr Wetzler, sought bail from the County Court of Victoria following his arrest for the murder of a man, Mr Walker, who was found dead over two decades ago. The case had been reopened, and the applicant, with no prior criminal history, now faced the charge. The application was heard by Justice Byrne, who was tasked with determining whether the applicant should be granted bail under the Bail Act 1977 (Vic). The primary legal issue before the court was whether the exceptional circumstances outlined in section 1B of the Act were satisfied, given the long delay and the reopening of a cold case. The court also considered the risk the applicant posed to the community, as well as other relevant factors such as the strength of the prosecution case and the applicant's ties to the community.

The court's reasoning was guided by the provisions of the Bail Act 1977 (Vic), particularly sections 1B, 3AAA, 4, 4AA, 4E, 18, 18AA, and 18AB. Justice Byrne noted that the applicant had no criminal history, and the prosecution had not demonstrated that he posed an unacceptable risk to the community. The weak prosecution case, the significant delay since the original offence, and the applicant's residence interstate were all factors that supported the applicant's case for bail. The court concluded that the exceptional circumstances outlined in section 1B of the Act were indeed satisfied, and that the risk of the applicant failing to appear was minimal. Therefore, the court granted the applicant bail.

In light of the above, Justice Byrne ordered that Mr Wetzler be released on bail subject to certain conditions. These conditions included the requirement for the applicant to reside at a specified address, to report to a police station on a regular basis, to surrender any travel documents, and to observe a curfew. The applicant was also to refrain from contacting any witnesses in the case. The case underscores the importance of considering exceptional circumstances and the strength of the prosecution case when determining whether to grant bail in a cold case scenario.

Orders