Re Wetzler
[2023] VSC 626
•18 October 2023
| 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 decision to grant extradition bail and the applicant had to ‘show cause’ under that Act.
(a) he reside at an address in [redacted], NSW;
(b) he report to Belmont Police once per week;
(c) he attend Melbourne Magistrates’ Court on 15 September 2023;
(d) he not enter international departure point; and
(e) he not commit further offences.
The bail decision was stayed while NSW Police requested that the NSW Director of Public Prosecutions [‘NSW DPP’] make a detention application in the Supreme Court of NSW. The applicant raises certain issues with what occurred during this process. Ultimately, however, the NSW DPP determined not to proceed with the application and the applicant was released from custody on 8 September on extradition bail.
The applicant attended at the Melbourne Magistrates’ Court on 15 September 2023 on bail and was remanded in custody.[3]
[3]The Magistrates’ Court of Victoria did not have the power to grant the applicant bail on 15 September 2023 as section 13(2) of the Bail Act 1977 (Vic) provides that only the Supreme Court, or a court on committing the person for trial, may grant bail to a person accused of murder.
The matter is next listed for a committal case conference and mention on 10 January 2024 at the Melbourne Magistrates’ Court. A brief of evidence is due to be served on 29 November 2023.
The alleged offending
The prosecution alleges that the applicant murdered Debra Campbell between 24 and 26 February 1984, and disposed of her body at an unknown location. Her body has never been recovered.
The applicant and Ms Campbell met in 1982 while they both worked at the Royal Australian Air Force [‘RAAF’] in Melbourne. By mid‑1983, they lived together in Windsor and were engaged. They planned to have an engagement party on 10 March 1984, before marrying in November of that year.
The last independent sighting of Ms Campbell
On Friday 24 February 1984, the applicant and Ms Campbell attended a work barbeque. Ms Campbell left with her colleague after requesting that he walk her home. She shared her excitement about the engagement. As they approached her home, Ms Campbell invited him in for a coffee but he declined and left. This was the last independent sighting of her.
Events of 25 and 26 February 1984
The events that occurred on Saturday 25 February and Sunday 26 February 1984 are based on the accounts provided by the applicant over the years. These events include the following matters.
25 February 1984
On 25 February, the applicant and Ms Campbell cleaned their apartment after lunch. She cut her finger on glass whilst cleaning. They then had an argument about Ms Campbell’s employment in the RAAF. She had been unhappy in her role for some time and wanted to resign, but the applicant wanted her to stay so they could save money for their wedding.
The applicant and Ms Campbell had planned to take his car for a drive to test it after some repairs. In the car, they continued to argue over Ms Campbell’s employment.
After Ms Campbell stopped talking to the applicant, he turned the car around and drove home. She got out of the car at approximately 1:30pm, walked down the path and turned the corner towards the front door.
The applicant remained in the car for a few minutes before driving away. He then drove around for several hours and returned home at approximately 5:00pm.
Ms Campbell was not at home upon the applicant’s return. The lights and TV were switched off. The applicant called a friend, Julie James. Ms James said that the applicant sounded confused, and she told him that Ms Campbell would come home soon. The applicant also claims he called the mother of his then‑housemate, Karen Hewitt, mother but police state that this cannot be corroborated.
26 February 1984
On 26 February, the applicant called Ms James and Karen Hewitt. Neither had heard from or seen Ms Campbell. She also failed to call her mother as she had previously arranged. It is the prosecution case that Ms Campbell was deceased by this time.
Subsequent events
On Monday 27 February 1984, the applicant attended his workplace as usual. At 8:00am, he called Ms Campbell’s area at work and was told she was not there. He then spoke to her sergeant to explain what had occurred over the weekend. An RAAF administration officer later advised him to leave the matter with them.
At some point during the day, Ms Campbell’s mother, Jean Campbell, received a phone call from someone at the RAAF advising that her daughter was absent from work. At approximately 5:00pm, Jean Campbell spoke with the applicant who repeated his account.[4]
[4]Jean Campbell made contemporaneous notes of this conversation. These were seized by police in August 1985.
On 27 or 28 February 1984, the applicant received a phone call from his friend, Deborah Usher (then Etherden) to discuss arrangements for the engagement party. The applicant informed Ms Usher of Ms Campbell’s disappearance. Ms Usher continued to seek updates from the applicant over the week, before flying to Melbourne to stay with the applicant. A mutual friend, Jeffrey Clarke, was also around at this time.
The applicant previously resided with Ms Usher and others in Queensland and is alleged to have had a sexual relationship with her in 1981, while she was married.
Investigation conducted by the RAAF
An investigation was conducted by RAAF personnel in relation to Ms Campbell being absent without leave [‘AWOL’]. They obtained a statement from the applicant on 29 February 1984 and conducted a search of the apartment in Windsor.
On 20 March 1984, a military court session was called to investigate Ms Campbell for being AWOL. The applicant gave evidence, with the court finding she had been AWOL since 27 February (when she failed to attend work).
Initial investigations conducted by Victoria Police
On 2 March 1984, Jean Campbell reported Ms Campbell’s disappearance to Victoria Police, and initial investigations were conducted.
In February 1985, the file was referred to the Homicide Squad. Detectives searched the Windsor apartment in March, by which point it was unoccupied. They found no evidence of blood staining. Crime scene photographs were taken, but these were destroyed after seven years.
The applicant was interviewed on 26 August 1985. He gave an account of his movements, denied killing Ms Campbell and could not explain her disappearance.
Coronial inquest
In 1998, a coronial inquest was held. The applicant provided evidence and confirmed that his earlier statement during the RAAF investigation and record of interview with Victoria Police were true and correct.
The coroner found on the evidence that it was likely Ms Campbell was dead, and as the circumstances of her death could not be determined, the issue of contribution remained open.
Re-investigation, covert operation and arrest
In 2022, the Missing Persons Squad reviewed the file. As there was no credible alternative hypothesis for Ms Campbell disappearing, and as her remains had not been located, police commenced a covert investigation into the applicant in 2023.
In March 2023, the applicant spoke with an undercover operative from Victoria Police. This coincided with the operation of telephone intercepts and listening devices installed in the applicant’s home and car between March and April 2023. The devices recorded various conversations, particularly with his family. Certain aspects of the covertly recorded conversations appear to be the focus of police investigations, such as potential inconsistencies and the inference that the applicant was being deliberately misleading about his memory of Ms Usher (Etherden) and the nature of their relationship.
On 28 March 2023, a search warrant was executed at the applicant’s home and items were seized.
On 31 August 2023, a charge of murder and warrant was issued at the Melbourne Magistrates’ Court. The applicant was arrested at his home in New South Wales on 6 September 2023. He has declined to participate in a further interview.
The applicable legislation
The applicant is charged with murder, which is a Schedule 1 offence within the meaning of the Bail Act1977 (Vic) [‘the Act’].[5] Bail must therefore be refused unless the applicant can satisfy this court that exceptional circumstances exist justifying a grant of bail.[6] In considering whether exceptional circumstances exist, the court must take into account the surrounding circumstances, including, but not limited to, those prescribed in section 3AAA(1) of the Act.[7]
[5]The Act, sch 1, item 2.
[6]Ibid ss 4AA(1), 4A(1)–(2).
[7]Ibid s 4A(3).
If satisfied that exceptional circumstances exist, the court must apply the unacceptable risk test.[8] Bail must be refused if satisfied that there is a risk of a kind set out in section 4E(1)(a) of the Act, and that such risk is unacceptable.[9] In considering whether any relevant risk is unacceptable, the court must again take into account the surrounding circumstances and consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not unacceptable.[10]
[8]Ibid ss 4A(4), 4D(1)(a).
[9]Ibid ss 4D(2), 4E(1)–(2).
[10]Ibid s 4E(3).
The applicant’s personal circumstances
The applicant is 65 years of age and married to Sandra Allen‑Wetzler. They have two adult children. The applicant has resided with his wife in their family home in [redacted], New South Wales for about 22 years. The affidavit of Mrs Allen‑Wetzler filed on 10 October 2023 indicates they anticipate placing their home on the market for sale soon to fund the applicant’s legal fees.
Prior to his remand, the applicant had been employed at the Australian Tax Office [‘ATO’] for about 19 years. On the day of his arrest, his employment with the ATO was suspended without remuneration. The applicant ultimately resigned from his position, on the understanding that his employment would otherwise be terminated. He may seek to resume his job if granted bail, following legal advice on the circumstances of his resignation.
The applicant does not have a criminal history or any outstanding matters.
The applicant’s contentions
Exceptional circumstances
Strength of the prosecution case
The applicant strenuously denies the alleged offending and relies on the presumption of innocence. The applicant submits that the prosecution case is speculative, weak and foredoomed to fail (or very close to it). Further, it is submitted that an alternative reasonable hypothesis inconsistent with the applicant’s guilt looms large, for example that Ms Campbell was killed by someone else. The applicant submits that this alone gives rise to exceptional circumstances.
In relation to the prosecution case, the applicant notes the following:
(a) it will be a matter for the jury as to whether the evidence can prove beyond reasonable doubt that Ms Campbell is deceased, however, her body has never been recovered and the coroner only concluded her death was ‘likely’. Relatedly, there is no evidence on how Ms Campbell was killed;
(b) there is no CCTV footage or forensic evidence of any kind linking the applicant to the alleged offending;
(c) no evidence of blood staining was found during an examination of their apartment in March 1985;
(d) there is no plausible motive alleged against the applicant. The applicant submits that police suspicion appears to arise from him being Ms Campbell’s boyfriend and the last known person to see her. Ms Hewitt, who lived with the applicant and Ms Campbell for some time, did not inform the police of any adverse observations about their relationship, such as physical or verbal aggression. The admissibility of Jeffrey Clarke’s evidence is disputed, and in particular the second‑hand hearsay that he attributes to Ms Usher, which is not corroborated by what Ms Usher told police. To the extent that a motive can be discerned from the prosecution case at present, it seems to be that the applicant murdered Ms Campbell to be with Ms Usher in combination with the argument about leaving the RAAF, which the applicant submits does not survive logical analysis. The applicant submits that the extent to which the applicant has been misleading about the affair with Ms Usher is unable to be assessed without the full brief of evidence, and there is no reference to any evidence that Ms Usher and the applicant had an intimate relationship after Ms Campbell’s disappearance in any event. On this basis, it is submitted that the topic of Ms Usher is a red herring and, even if it is conceded that the applicant misled investigators about the previous affair, it may be explained in the circumstances and not because of any consciousness of guilt;
(e) as of January 2023, there was not enough evidence to charge the accused, resulting in the covert operation. The only fresh evidence is therefore the covert recordings. The applicant submits that, other than the affair issue discussed above, it is difficult to discern how any of the covert recordings could be relied upon to convict the applicant. The applicant observes that the extracts do not contain an admission or confession. The applicant submits that the admissibility of the covert recordings will be an issue due to the deceptive context in which those conversations occurred as set out in the affidavit of Mrs Allen‑Wetzler, and the manifest unfairness in responding to questions when not under any duty to tell the truth, and without the benefit of being able to refresh his memory on previous statements or evidence given the passage of time. There may be challenges to the admissibility of other evidence obtained through recordings and warrants, subject to receiving the brief and copies of the relevant documents;
(f) the interrogation of USB sticks and hard drives seized from the applicant’s home has revealed nothing of note;
(g) in respect of the summary of circumstances filed by the respondent on the bail application, the applicant observes that it is often not clear from whom statements have been taken when asserting a fact. Further, the informant does not appear to identify any inconsistencies or alleged untruths (other than in relation to the affair with Ms Usher) across the applicant’s accounts over the years; and
(h) the difference in dates of the alleged offending, namely some documents stating that the alleged murder occurred on 25 February 1984 and others between 24 and 26 February 1984, is suggestive of a confused prosecution case.
Conduct of the arrest and extradition proceedings
The applicant raises concerns in relation to how the arrest and extradition proceedings were conducted, suggesting that the informant’s involvement was ill‑motived in some aspects.
It appears that these issues are raised to provide an overview of the procedural history of the matter, and as a basis for the submission that any allegations and piecemeal formulation of parts of covert recordings being placed before this court by the informant should be considered with due caution as to accuracy and context.
Criminal history
The applicant relies on his lack of criminal history and that he has never been previously charged with a criminal offence.
Bail compliance history
The applicant made his own arrangements to appear on bail at the Melbourne Magistrates’ Court on 15 September 2023, in circumstances where he was aware that he would be remanded at that time.
The applicant will continue to make arrangements to attend court appearances in Victoria if granted bail.
Family support and stable accommodation
The applicant proposes to reside with his wife at an address in [redacted] in New South Wales, if granted bail. If their house is sold, they intend to remain living in the same local area to be near their children. The applicant submits that he has strong ties to his local community.
Employment
The applicant intends to explore whether his employment at the ATO can be reinstated if granted bail.
Delay
The applicant submits that the significant lapse of time between the alleged offending and laying of charges, namely four decades, is of particular influence in determining the existence of exceptional circumstances, along with the applicant’s lawful conduct during this period.
The applicant understands that he is likely to be in custody on remand for two years before his trial if bail is not granted. He submits that this is at odds with the presumption of innocence and gives rise to exceptional circumstances.
Absence of matters constituting unacceptable risk
As the respondent does not submit any unacceptable risk, the applicant submits that this is a relevant consideration as to whether exceptional circumstances exist.
Unacceptable risk
As above, the applicant makes no submissions in relation to the unacceptable risk test, given that the respondent has not alleged the applicant poses any such risk.
Proposed bail conditions
The applicant proposes the following bail conditions, namely that he:
(a) reside at an address in [redacted], New South Wales;
(b) report to Newcastle Police Station between the hours of 8:00am and 8:00pm once per week;
(c) appear in any Victorian or other court as required;
(d) not approach within 500 metres of any international point of departure, including by air or sea; and
(e) not travel outside the state of New South Wales, except for the purpose of complying with his obligation to appear at court.
The respondent’s contentions
The respondent’s position is that bail will be granted if the court is satisfied exceptional circumstances exist. The respondent does not allege any unacceptable risk.
Exceptional circumstances
In response to the applicant’s contentions, and in addressing the surrounding circumstances, the respondent relies on the informant’s report which sets out the following contentions.
Nature and seriousness of the alleged offending
The respondent submits that the alleged offending is of a serious nature, and that the applicant has taken significant measures to conceal it.
Strength of the prosecution case
The respondent submits that it is not a weak prosecution case, rather it is a strong circumstantial case, relying on witness testimony and covertly recorded conversations between the applicant and others.
Disclosure and conduct of the investigation and proceedings
In response to the applicant’s contentions on disclosure, the respondent states that their intention was to interview the applicant with his consent on 19 March 2023 and following his arrest on 6 September 2023, and that supplying copies of the applicant’s previous accounts would not have allowed them to obtain a ‘non‑bias truthful account’. The hand‑up brief is due on 29 November 2023.
In respect of the arrest and extradition proceeding, the respondent states that police deemed it safest to arrest the applicant in the way they did, and the police did not intend to release a complete summary of evidence during the extradition proceeding. The respondent is satisfied that there are no mental health issues that would prevent the applicant from being granted bail.
Criminal history and family violence risks
The respondent confirms that the applicant does not have any prior criminal history nor outstanding matters, and there are no family violence orders in force against him.
Stable accommodation
The respondent has no issue with the proposed bail address.
The views of Debra Campbell’s family members on bail
Ms Campbell’s mother, Jean Campbell, does not support bail, given the impact that her daughter’s disappearance has had on her life.
Surety
The respondent submits that a substantial surety would be an appropriate bail condition.
Unacceptable risk
The respondent does not submit that there is any unacceptable risk within the meaning of the Act if the applicant is granted bail.
The respondent was initially concerned that the applicant posed a flight risk, due to the fact that he resides outside the jurisdiction and the serious nature of the charge. However, the respondent submits that this risk has been reduced by his attendance at the Melbourne Magistrates’ Court on 15 September, and the fact that the applicant does not hold a passport.
Analysis and conclusions
The applicable law
It is accepted by the parties in this application that the exceptional circumstances test applies. In short, in order to receive a grant of bail, the burden is on the applicant to establish that the test is satisfied. In assessing whether the test has been met, the court is obliged to take into the account surrounding circumstances, which I have done.
Then, if the exceptional circumstances test has been met, the court is required to consider whether the applicant is an unacceptable risk as defined by the Act, such that the grant of bail must be refused. Again, in assessing this part of the application the court is obliged to take into account the surrounding circumstances. Furthermore, the burden of establishing that the applicant is an unacceptable risk lies on the respondent.
This application has proceeded on the basis that the respondent has not opposed the grant of bail, provided the court is satisfied that the exceptional circumstances test has been met. The respondent does not argue that the applicant poses an unacceptable risk. Notwithstanding the position taken by the respondent, the question of whether each test has been met is always a matter for the court to decide. However, the court notes the approach taken by the respondent in this application which is of assistance in making the relevant decision.
In making an assessment of whether the applicant has satisfied the requirements of the exceptional circumstances test, I have had regard to the relevant provisions of the Act as have been set out above. The test can be satisfied by a combination of factors, observing that whilst each of the factors might individually be regarded as ordinary, when viewed together, they may satisfy the test. The applicant relies on a combination of factors in this application.
Step 1: Has the applicant shown that exceptional circumstances exist?
The exceptional circumstances test, although not impossible to reach, is a high threshold.[11] The circumstances put forward by the applicant must take the case “out of the normal”, or to put it another way, the applicant must show there are circumstances that are “right out of the ordinary” to justify his release on bail.[12]
[11]Re Villani [2021] VSC 638, [34] (Tinney J).
[12]DPP v Muhaidat [2004] VSC 17, [13] (Kaye J); Re Brown [2019] VSC 751, [65]–[66] (Lasry J); Re Tong [2020] VSC 141, [18]–[19] (Tinney J).
Having considered the evidence, and the arguments, I accept that the exceptional circumstances test has been met, for the following reasons, relied on in combination.
Strength of the prosecution case
Whilst the alleged offending is of the most serious nature, the prosecution case as set out in the police summary does not appear to be particularly strong or compelling. The central plank of the applicant’s argument is that the case is weak, and foredoomed to fail. On the other hand, the prosecution initially characterised the case as a “very strong” one, although this submission was somewhat modified during the course of oral submissions. It is not the role of this court in a bail application to form final conclusions about this matter; that role is for the trier of fact. Rather, it is necessary to form some broad views about whether, taking the prosecution case at its highest, it might be regarded as a strong or weak case.
It appears there is no direct evidence of the alleged murder by the applicant. The case put forward is a circumstantial one, based on the applicant having had the opportunity to murder his then‑fiancé, and some other alleged inconsistencies in his account of what is a homicide alleged to have occurred in 1984. The body of Ms Campbell has not been located, and the investigation does not appear to have been reopened as a result of compelling fresh forensic evidence or a confession, as examples of possible new facts. Accordingly, the case as presently advanced is that there is no direct evidence available and the applicant vehemently denies his involvement in Ms Campbell’s disappearance. In short, my present view is that it cannot be reasonably said the case put against the applicant is a strong one. I add that it also seems to me that no plausible motive has been suggested by the prosecution in respect of these allegations.
Next, the applicant has no criminal history. It is put forward on his behalf that he has lived a productive and functional life with a sound employment history, and that he has demonstrably strong family support and community ties. He is also an older man, on whom custody is likely to be more burdensome because of his age. I also take into account that, if he remains remanded in custody in Victoria for a significant period of time, he will necessarily not have the support of networks and other prosocial factors that will be present within his local community, including family and friends.
Thirdly, there is the question of delay. It has been submitted that the applicant may not face trial for another two years. This is a significant period of time to spend in custody given the presumption of innocence, and it takes on another patina when the weight of the prosecution case is taken into account, as described above.
For these reasons, I am satisfied the applicant has succeeded in demonstrating exceptional circumstances, such that there should be a grant of bail.
Step 2: Has the respondent shown there is an unacceptable risk that cannot be moderated by bail conditions?
With respect to the risk posed by the applicant, I have considered the submissions of the parties and all the relevant factors. In particular, I have taken into account that the respondent does not submit that the applicant poses an unacceptable risk. Regardless, as with the exceptional circumstances test, the court must still be independently satisfied of this factor.
In light of the factors already discussed, particularly the applicant’s older age, his stable family home and community in New South Wales, his lack of criminal history, and lack of evidence or indication suggesting he is a risk of flight, I am willing to accept that the degree of risk the applicant poses, if any, can be satisfactorily managed with the imposition of suitable bail conditions. I am not satisfied that the respondent has proved the applicant represents an unacceptable risk as defined by the Act.
Conclusion
Accordingly, bail will be granted in the following terms, namely that the applicant:
(a) reside at his address in [redacted], New South Wales;
(b) report to Newcastle Police Station between the hours of 8:00am and 8:00pm once per week;
(c) appear in any Victorian court or other court as required;
(d) not approach within 500 metres of any international point of departure, including by air or sea; and
(e) not travel outside the state of New South Wales, except for the purpose of complying with his obligation to appear at a court in Victoria.
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