Re Whitfield
[2020] VSC 632
•01/01/2002
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2020 0218
| IN THE MATTER of the Bail Act 1977 |
| v |
| IN THE MATTER of an application for bail by Denaye Bronwyn Whitfield |
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JUDGE: | TAYLOR J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 18 September 2020 |
DATE OF JUDGMENT: | 28 September 2020 |
CASE MAY BE CITED AS: | Re Whitfield |
MEDIUM NEUTRAL CITATION: | [2020] VSC 632 |
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CRIMINAL LAW – Application for bail – Accused charged with statutory murder and armed robbery – Whether exceptional circumstances exist – Whether accused is an unacceptable risk – Identification of foundational offence for statutory murder – Issue as to causation of death – Strength of prosecution case – Unusual combination of personal circumstances – Bail granted on strict conditions.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr N Hutton | Office of Public Prosecutions |
| For the Accused | Mr R Nathwani | Lewenberg & Lewenberg Solicitors |
HER HONOUR:
On 6 August 2020 Denaye Bronwyn Whitfield, the applicant, was remanded in custody after being charged with murder and armed robbery.
On 7 September 2020 she gave notice of intention to make an application for bail in this Court. That application was heard on 18 September 2020.
For the reasons that follow bail is granted on the terms and conditions delineated in paragraph [65] below.
Summary of allegations
Bradley Crawford, the deceased, lived in a caravan parked in the driveway of his mother’s home at a house in Borg Crescent, Scoresby. From there he trafficked a variety of drugs including cannabis, methylamphetamine and cocaine.
The applicant was introduced to the deceased in June 2019. Over the next three to four months she attended at the caravan to purchase drugs on about 10 occasions.
The applicant met Benjamin Nagy in July 2019. During a conversation between them in September 2019, the applicant told Nagy that she had been buying methylamphetamine from the deceased. During a further conversation between them on 13 September 2019, Nagy asked the applicant if she knew of the quantity of drugs and cash kept by the deceased in his caravan. The applicant told Nagy that she owed money to the deceased, to which Nagy said words to the effect ‘fuck him, don’t pay him’. Nagy also said that he wanted to go to the caravan and asked where it was.
The applicant later told police that she became uncomfortable during this conversation as she believed that Nagy intended to ‘rip off’ the deceased.
At about 3.52am on 15 September 2019, the applicant and Nagy exchanged text messages. The applicant wrote to Nagy ‘we need to do this job like now’. They arranged to meet.
At about 4.41am that day, CCTV footage from the Aria Hotel in Southbank shows Nagy driving from the hotel in a Mazda utility with two passengers, Jake Oldis and Tomas Cugurno-Pfabe. Prior to leaving the hotel carpark, Nagy is captured on that footage retrieving a pair of work gloves from the rear tray of the utility, where a black handled, white-headed mallet is also visible.
At approximately 5.38am, CCTV footage from a carpark at the Ferntree Gully Hotel depicts the applicant meeting Nagy, Oldis and Cugurno-Pfabe. Before the group are depicted leaving the carpark in the applicant’s Volkswagen, Nagy can be observed reaching into the rear tray of the Mazda utility, near the location of the mallet.
CCTV footage from Borg Crescent, Scoresby shows the applicant’s Volkswagen vehicle arrive and park in that street about 20 minutes later.
Witnesses, including the mother of the deceased and her neighbours, report hearing loud banging noises, muffled voices and a car taking off at speed at about 6.00am.
At approximately 6.32am, CCTV footage from the carpark at the Ferntree Gully Hotel depicts the applicant return in her vehicle with Nagy, Oldis and Cugurno-Pfabe.
The deceased was discovered in an unresponsive state at about 4.30pm that day. He had obvious facial injuries and his caravan appeared to have been ransacked. A wooden box containing cocaine was missing. A black handled, white-headed rubber mallet with blood and hair on it was found.
During a later post mortem examination conducted by Dr Lynch of the Victorian Institute of Forensic Medicine, the cause of death was unable to be determined. The deceased had significant lung disease. Cocaine, methylamphetamine and cannabis was found in his system. Dr Lynch observed that the blood in the deceased’s airways caused by the facial trauma may have ‘further compromised the [deceased’s] capacity for adequate oxygenation’.
On 20 September 2019, a telephone conversation was recorded between the applicant and an associate who was imprisoned at Ravenhall Correctional Centre. The applicant said that she could not return to the location where she used to obtain drugs, telling her associate that they did not understand how bad her last week had been, and that the consequences would affect her whole life.
The applicant and co-accused were each arrested and interviewed on 11 December 2019. Although initially uncooperative, during a second record of interview the applicant made certain admissions that were later repeated in a signed voluntary statement.
On 6 August 2020 the applicant was arrested and charged with both murder[1] and armed robbery.[2] She was remanded in custody.
[1]Contrary to s 3A of the Crimes Act 1958 (‘Crimes Act’).
[2]Crimes Act, s 75A.
Relevant legal principles
Bail must be refused unless the applicant satisfies the Court that exceptional circumstances exist which justify the grant of bail.[3] In determining whether exceptional circumstances are demonstrated, the Court must take into account the relevant ‘surrounding circumstances’ prescribed in s 3AAA(1) of the Act.
[3]Bail Act 1977 (‘Act’), ss 4AA(1), 4A(1A) and 4A(2). The applicant is charged with a Schedule 1 offence.
The meaning of exceptional circumstances is well known. It is unnecessary to repeat various judicial formulations of that meaning.[4] It is enough to note that the circumstances must unite to produce a situation that is something other than ordinary. The test is a stringent one but it is not impossible to meet.
[4]The applicant referred variously to: Re Ceylan [2018] VSC 361; Re Gloury-Hyde [2018] VSC 393; CT [2018] VSC 559; Armstrong v R [2013] VSC 111.
If exceptional circumstances are satisfactorily shown, the Court must still refuse bail if the respondent demonstrates that there is a risk that the applicant would engage in any of the conduct outlined in s 4E(1)(a) of the Act and that such a risk is an unacceptable one. In determining that issue the Court must again have regard to the surrounding circumstances as delineated in s 3AAA(1). The Court must further consider whether there are any conditions of bail that might be imposed to mitigate the risk so that it is not unacceptable.[5]
[5]The Act, s 4E(3).
Personal Background of the Applicant
The applicant is now 29 years of age. Notwithstanding the reportedly strong relationship with her grandparents, her family relationships have been marked by difficulty. At the age of about two she was abandoned by her mother, [redacted]. Thereafter she was raised by her grandparents while her older step-siblings went to live with their father. She has three other half-siblings from her father’s second marriage. She has a strained relationship with her father, who is currently serving a significant custodial sentence [redacted].
Since the age of about 20, the applicant has had a history of substance abuse including the use of methylamphetamine, GHB, MDMA, Xanax and cannabis. She reports a period of abstinence between February and July 2020.
The applicant has been diagnosed with post-traumatic stress disorder. She has severe symptoms of that disorder which manifest in sleeping difficulties, hypervigilance, moderate depression, severe stress and extremely severe anxiety. She received [redacted] treatment, [redacted] for her symptoms during a five month period in 2020, when she was living in Western Australia. This was the period of reported abstinence from illicit drugs.
The applicant has experienced periods of homelessness, but was living with her grandparents immediately prior to her arrest and remand. She was employed as a property manager with a real estate agency until late 2019. She has a number of qualifications including a Certificate IV in property services and Certificates III in business and hospitality.
The applicant has no prior criminal convictions. In 2019 she was charged with 10 counts of possessing a drug of dependence and one count of committing an indictable offence whilst on bail. Those matters are currently subject to diversionary procedures. She also faces two separate outstanding matters with respect to drug possession, shoplifting and a driving offence. She has never before been in custody.
Exceptional Circumstances
The applicant relies upon a combination of matters to establish exceptional circumstances.
The seriousness of the allegation and strength of the prosecution case
The applicant accepts that murder is a serious offence. It might be noted that armed robbery, too, is a serious offence.
The applicant submits that the Crown case of murder against her is so weak that there a real prospect of a jury returning the alternative verdict of manslaughter, or an acquittal. That submission is made on two bases. First, the nature of the case against her pursuant to s 3A of the Crimes Act. Second, the weakness of the evidence as to cause of death. It is necessary to examine these submissions and the Crown’s response.
It is agreed between the parties that the applicant did not strike the deceased with any blows. It is also agreed that there is no direct evidence proving the applicant was aware that her co-accused were armed with a mallet.
In her record of interview and voluntary statement, the applicant made the following admissions upon which the respondent relies:
(a) The deceased was her usual drug dealer and she regularly attended at his address to purchase and use drugs.
(b) Neither the deceased nor his address were known to the accused until 15 September 2019 when she took them there.
(c) She owed the deceased money.
(d) In recent times the quality of the drugs the deceased provided had declined while the price had increased.
(e) She had decided to source drugs elsewhere.
(f) When she first met Nagy she had a discussion with him in which he wanted to know where there was a ‘good earn’.
(g) On 13 September 2019 she discussed with Nagy the money she owed the deceased – referring to him by his occupation but not his name – and Nagy said ‘fuck him, don’t pay him’.
(h) She formed the opinion that Nagy was proposing to her that the deceased be the subject of a drug/money rip-off.
(i) On the morning of 15 September 2019 she contacted Nagy and said ‘we need to do this job like now, before there isn’t one’.
(j) A short time later she met the three co-accused in the car park of the Ferntree Gully Hotel and all four drove to the deceased’s home in the applicant’s vehicle.
(k) She knew that the co-accused were going to ‘roll’ the deceased for his drugs and money. She also used the descriptors ‘stand over the deceased’, ‘staunch him’ and ‘put pressure on him’ to get his drugs and money.
(l) She entered the caravan before Nagy and Cugurno-Pfabe while Oldis remained in the vehicle.
(m) She saw Nagy and Cugurno-Pfabe begin to assault the deceased before she left.
(n) Nagy and Cugurno-Pfabe ran to her car some time later.
(o) All four then returned to the Ferntree Gully Hotel in the applicant’s car.
The respondent submits that other evidence including CCTV footage, call charge records and forensic material on a mallet found at the scene supports much of the applicant’s version. I note that it became apparent during the hearing of the application that the results of forensic testing of the hair and blood on the mallet are yet to be obtained. But, it was accepted that it would be ‘surprising’ if those results indicated that that material was sourced from anyone other than the deceased.[6]
[6]Approximately three hours before this matter was listed for judgment, a solicitor from the Office of Public Prosecutions sought leave by email to refer to evidence, just received by the prosecution, which might be considered ‘favourable to the application’. That evidence was stated as follows:
Section 3A of the Crimes Act is in the following terms
A person who unintentionally causes the death of another person by an act of violence done in the course or furtherance of a crime the necessary elements of which include violence for which a person upon first conviction may, under or by virtue of any enactment, be sentenced to level 1 imprisonment (life) or to imprisonment for a term of 10 years of more shall be liable to be convicted of murder as though he had killed that person intentionally.
Thus statutory murder is committed when death results from an act of violence done ‘in the course or furtherance’ of another crime, usually termed the foundational offence. Under s 3A, the foundational offence must be an offence of violence which carries a maximum penalty of ten years or more.[7]
[7]R v Perry [2016] VSCA 152 (‘Perry’), [34].
The respondent submits that it can prove statutory murder against the applicant in any one of three ways. First, she was involved in a robbery simpliciter (depending upon how the evidence falls as to the use of the mallet to cause the fatal injuries). Second, she was involved in an armed robbery, relying upon inferences to be drawn from her statements to police that the plan was to ‘roll’ the deceased, ‘staunch’ him and ‘pressure’ him. Third, she was involved in a robbery simpliciter and aware that it was probable that a co-accused would use a blunt weapon, but not necessarily the mallet.
The respondent states that while none of these possible case formulations are weak, relying on armed robbery as the foundational offence is ‘weaker’ than relying on robbery simpliciter.
To establish that the applicant was ‘involved in’ such a robbery or armed robbery, the prosecution relies upon s 323 of the Crimes Act, which defines a person as being ‘involved in’ the commission of an offence if the person ‘intentionally assists, encourages or directs the commission of the offence’;[8] or if the person ‘enters into an agreement, arrangement or understanding with another person to commit the offence’.[9]
[8]Crimes Act, s 323(1)(a).
[9]Crimes Act, s 323(1)(c).
While it is not in dispute that the elements of both robbery and armed robbery include violence and satisfy the penalty requirements of s 3A of the Crimes Act, the applicant submits that in the circumstances of this case, robbery cannot be used as the foundational offence for statutory murder. Rather, only armed robbery can be so used. Uniting the various relevant statutory provisions and relying upon R v Galas; R v Mikhail[10] and R v Perry[11] the applicant submits that the Crown must, but cannot, prove that the applicant made a ‘conscious, voluntary and deliberate decision to commit the act of violence that caused the death’.[12] In response, the respondent argues that the mental element to prove s 3A murder against the applicant is that she was consciously, voluntarily and deliberately involved in the robbery or armed robbery (depending upon how the case is formulated) of the deceased.
[10][2007] VSCA 304 (‘Galas’).
[11][2016] VSCA 152 (‘Perry’).
[12]Applicant Submissions for Bail, [23].
As I apprehend the applicant’s argument, it is submitted that if the evidence is that a mallet was used to cause the injuries to the deceased during the assault (and those injuries are found to be a substantial and operative cause of his death) then the act of violence which caused the death was not done in the course or furtherance of a robbery, but in the course or furtherance of an armed robbery. If the applicant was involved in (via s 323 of the Crimes Act) a robbery simpliciter but not an armed robbery, she cannot be fixed with the decision to commit the act of violence with the weapon which caused the death as it was done in the course of or in furtherance of an offence to which she was not party.[13]
[13]As to ‘course or furtherance of a crime’ see Galas, [33]-[34] in the context of attempted armed robbery being a sufficient foundational offence.
It is not necessary for me to resolve this issue in advance of all the evidence being known and the prosecution having arrived at a final formulation of its case. However I consider it relevant that the applicant has been charged with armed robbery and not robbery as a discrete, separate offence.[14] The applicant submitted, without demur from the respondent, that the case as formulated against the three co-accused is based squarely on armed robbery as the foundational offence. Indeed, part of the case against Cugurno-Pfabe is a covert recording in which he allegedly admits striking the deceased twice to the head with the mallet, which was then left behind. Further, the parties share the expectation that the forensic evidence will identify the blood and hair on the mallet as belonging to the deceased, thereby allowing for an inference that it was used against the deceased by Nagy and Cugurno-Pfabe.[15]
[14]Perry, [8](f).
[15]As noted in footnote 6 above, the evidence establishes that the blood on the head of the mallet is very likely to be that of the deceased.
In light of these facts and the acceptance by the respondent that the case against the applicant is weaker if based on armed robbery, I consider that the architecture of the prosecution case against the applicant, but seemingly not the co-accused, is unsettled. The submissions made by the applicant are at least arguable.
A separate but related issue is causation of death. The respondent submits that in finding the cause of death to be ‘undetermined’, the pathologist noted the following injuries:
(a) Bruises, abrasions and lacerations to the face.
(b) Displaced fracture of the right zygoma; fractures to the lateral wall of the right maxillary sinus.
(c) Blowout fracture of the orbital floor.
(d) Swelling and bruising of soft tissue overlying the right zygoma.
(e) Lacerations to the left side of the forehead, forehead in midline, right supraorbital, right lip and upper lip.
The respondent submits that it is not expected that the deceased had been otherwise recently assaulted and that the assault is capable of being found by a jury to be a substantial and operative cause of his death.
The applicant highlights that the pathologist could only comment on the ‘possible contribution of the facial trauma’ to the death of the deceased.
I consider that there is a triable issue as to whether the facial injuries sustained by the deceased, whether caused by a mallet or otherwise, must have contributed significantly to his death or been a substantial and operating cause of it.
It is unnecessary for me to assign a descriptor to the strength of the prosecution case. However, in considering this issue as part of the surrounding circumstances on this application, I accept that the hurdles to proof beyond reasonable doubt of the elements of the offences with which the applicant is charged are real and not fanciful.
The applicant’s criminal history and compliance with previous bail
As noted above, the applicant has no prior convictions but has been dealt with by means of diversion for two matters. One of those was for committing an indictable offence whilst on bail, being the possession of drugs. The applicant was not subject to any court orders at the time of the alleged offending.
The applicant highlights that after her initial arrest, cooperation and release, she knew that she would be charged with something. With the knowledge of the informant she relocated to Perth and kept him apprised of her movements. She relies upon this as an indication that she would comply with any bail conditions imposed.
Accommodation and ties to the jurisdiction
The applicant enjoys the emotional support of her grandparents. If bailed she proposes to reside with them. They offer the equity in their unencumbered Mornington house, currently valued at $515,000, as surety.
The respondent raises concerns that the applicant herself has stated she has negative associations with her grandparents’ house, in so far as it was while she was a resident in Mornington that she became involved with the ‘wrong’ people and drug use.
If granted bail the applicant will have immediate full time employment with [redacted] as a secretary and occupational health and safety officer.
As noted above, the applicant has been diagnosed with high severity symptoms of PTSD, depression, anxiety and stress. The evidence suggests that this diagnosis, as well as her issues with illicit drugs, are likely linked to her early abandonment by her parents. During her five month relocation to Perth in 2019, she voluntarily sought treatment [redacted]. The interstate move was, apparently, to remove herself from ‘distractions’ in Melbourne. I have received evidence that this type of ongoing help can be funded and made available to her in Victoria. And it can be delivered remotely for as long as Melbourne is subjected to restrictions limiting in-person interaction due to the COVID-19 pandemic.
The respondent notes that the applicant relapsed upon her return to Victoria and the ‘distractions’ of Melbourne and Mornington in particular, are still present.
The applicant submits that whilst on remand she has demonstrated her desire to continue her rehabilitation. A number of certificates of her achievements are relied upon. Further, it is submitted that this period of incarceration, being her first, has been ‘incredibly salutary’ and coincided with the imposition of restrictions necessitated by COVID-19. The applicant relies upon the observations of Lasry J in Re Broes[16] that the impact upon a prisoner who has not been previously remanded in custody during these restrictions is more significant given the limit to or cancellation of social visits and, consequently, a factor favouring the grant of bail.
[16][2020] VSC 128 (‘Re Broes’), [40].
Delay and the impact of COVID-19
The applicant submits that the further impact of the COVID-19 restrictions is with respect to delay. Citing a number of decisions of this Court, it is argued that inordinate delay arising from the impact of COVID-19 may of itself amount to exceptional circumstances justifying the grant of bail.[17] The applicant submits that her prospects of attaining a trial date prior to mid-2022 are unlikely.
[17]Re Application for Bail by Biba [2020] VSC 536. The applicant also referred to Re Broes; Re Tong [2020] VSC 141; Re El-Referi [No 2] [2020] VSC 164; Re Nicholls [2020] VSC 189; Re McCann [2020]; and In the Matter of an Application for Bail by John Assad [2020] VSC 561.
During the hearing of the application the availability of this Court’s fast-track process for murder and manslaughter was raised.[18] The applicant submitted that all four accused would need to consent to the process and further, if the applicant forewent her committal, she would lose the realistic prospect of discharge. In reply the respondent submitted that the applicant is not bound by the choices of her co-accused, the prosecution case is not weak such that a discharge at committal is a reasonable possibility and in the (unlikely) event of a discharge it would be open to the prosecution to directly indict the applicant. The respondent submitted that it should not be open to the applicant to demonstrate the existence of exceptional circumstances through delay by choosing the lengthier of two options.
[18]After the hearing and without leave the applicant emailed supplementary submission to chambers on this point. The respondent did not object, but rather joined issue with the matters raised therein by also emailing supplementary submissions. Exceptionally they have been considered.
In the circumstances of this case I do not consider the likely delay to trial to be of the magnitude that it, in and of itself, amounts to exceptional circumstances. I accept that there will be some delay, whether the matter is fast-tracked or not, and that this issue should be given appropriate weight when considering the issue of exceptional circumstances as a whole.
Exceptional Circumstances - Conclusion
I am persuaded that when these matters are considered together, the applicant has demonstrated exceptional circumstances that justify the grant of bail. In particular, the prosecution case must overcome the hurdles identified above and the applicant has shown a unique combination of personal circumstances. These include the support of her grandparents, the prospect of immediate full-time employment and a concrete pathway to engage with rehabilitative programs with respect to her mental health and drug issues. Further, her particular vulnerability in custody is exacerbated by this being her first experience of incarceration during a regime of particularly restrictive measures due to the COVID-19 pandemic. And, there will be some delay to her trial.
Unacceptable Risk
It follows that I must consider the issue of unacceptable risk.
In the written material filed the respondent contended that the applicant posed an unacceptable risk of both committing an offence while on bail and failing to surrender into custody into accordance with the conditions of bail. At the hearing of the application, the Crown prosecutor who appeared on behalf of the respondent conceded, fairly, that the concern was focused on the latter.
That concern arises from the fact that on 6 August 2020 when she was arrested for these offences, the applicant was found in possession of a driver’s licence bearing her photograph, but in the name of ‘Daniela Venezia’. The applicant claimed to have no knowledge of this obviously fraudulent document. I accept the submission of the respondent that the applicant’s denial cannot be believed.
The applicant submits that, notwithstanding this incident, the applicant has a limited criminal history and no negative bail history. She kept the informant apprised of her move to Western Australia. She proposes residing at her grandparents’ home, a surety is available and she indicates a willingness to abide with reporting conditions and a curfew.
The possession of a false document of photographic identification is troubling, as is the applicant’s denial of knowledge about it. However I am persuaded that even if the risk that the applicant would fail to surrender into custody is an unacceptable one, that risk can be ameliorated by appropriate conditions attaching to the grant of bail. Some of those measures are purely practical. But I note that the strength of the applicant’s relationship with her grandparents and the use of the equity in their home, which is also her home, to provide a surety for a grant of bail will induce mature reflection in the applicant.
I also note, given the initial reliance of the respondent upon the risk that the applicant will commit an offence while on bail, I am of the view that the evidence shows that that risk is not an unacceptable one.
Conclusion and Orders
It follows that the accused will be admitted to bail on her own undertaking, with one surety in the amount of $300,000, to attend at the Magistrates’ Court of Victoria on 2 November 2020, on the following conditions:
(1)She reside at [redacted], in the state of Victoria, and not change that place of residence without the leave of the Court.
(2)She remain at those premises between the hours of 9:00pm and 8:00am each day for the duration of the bail.
(3)She present herself at the front door of the premises during those curfew hours at the request of any member of Victoria Police.
(4)She report daily to the Mornington Police Station between the hours of 9:00am and 7:00pm.
(5)She abstain from the consumption of any drug of dependence within the meaning of the Drugs, Poisons and Controlled Substances Act 1998 (Vic), except as prescribed by an appropriately qualified medical practitioner.
(6)She not contact, directly or indirectly, any co-accused or witnesses for the prosecution, save for the informant.
(7)She surrender any passport and any other travel documents she may have to the Mornington Police Station within 48 hours of this order, and not apply for another passport or any other travel documents.
(8) She not attend any points of interstate or international departure.
‘The DPP wishes to advise the court that Ms. Kate Outteridge (biologist at Victoria Police Forensic Services Centre) has analysed the biological material found on the mallet referred to in submissions by both counsel at the bail application. The results of that analysis indicate that:
A) There is blood on the head of the mallet that is very likely (100 billion x) to be that of the deceased; and
B) There is mixed DNA on the handle of that mallet that is very likely (100 billion x) to be that of the deceased and neither the applicant nor the co-accused’s DNA seems to be in that sample.’
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