Rosendale v The Queen

[2013] VSC 391

Do Not Send for Reporting
IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2013 0118

IN THE MATTER of the Bail Act1977 (Vic)

and

IN THE MATTER of an Application for Bail by NATHAN ROSENDALE

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JUDGE:	BONGIORNO JA
WHERE HELD:	Melbourne
DATE OF HEARING:	19 July 2013
DATE OF JUDGMENT:	19 July 2013
CASE MAY BE CITED AS:	Rosendale v R
MEDIUM NEUTRAL CITATION:	[2013] VSC 391

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CRIMINAL LAW – Bail – Murder – Applicant in ‘show cause’ situation – Burden on applicant to show exceptional circumstances – Exceptional circumstances not demonstrated –Trial imminent – Bail refused – Bail Act1977 (Vic) ss 4(2)(a) and 4(4)(d).

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J. Williams	Victoria Legal Aid
For the Respondent	Mr M. Rochford SC	Office of Public Prosecutions

HIS HONOUR:

1. This is an application for bail by Nathan Rosendale, who stands indicted in this Court on a charge of having committed murder, in respect of a person in a rooming house in St Kilda on or about 30 December 2011. The trial is listed in this Court before Kaye J on 21 October of this year; that is some few weeks away.

1. This bail application, being in respect of a charge of murder, must of course be supported by exceptional circumstances and perhaps even produces a show‑cause situation, although one does not have to go to that because of the fact that at the time it occurred the accused was on an order of the court which was still extant.  But in any event, the question is whether there are exceptional circumstances.

1. Mr Williams, in a cogent submission, said about as much as could be said, I think.  He submitted, essentially, that the Crown case is not a strong one.  The cause of death has not been determined pathologically and the Crown must rely on the evidence of a witness who says, effectively, that the deceased was stomped on his head, to death.  There is certainly no evidence of the cause of death, no professional evidence, largely because of the actions of those who were involved, to some extent, in disposing of the body.

1. It is clear that self‑defence is raised in the accused’s record of interview but in the event that a witness, Hornjak, is believed as to the events which occurred, that defence will have been met by the Crown.  If Hornjak of course is not believed, then a reasonable doubt would probably be sufficient to have the accused acquitted, but that is all a matter for the trial.  All that can be said at this stage is that it is not the strongest case, but many cases far weaker than this have succeeded.

1. Mr Williams also pointed to the strong family support the accused has, that he has stable accommodation in Echuca and that he has a close relationship with his grandmother, who is obviously aged and not in good health.  The third point is that he has strong ties to the jurisdiction.  Mr Williams submits that all of those, put together, produce exceptional circumstances.

1. I am afraid I am unable to agree.  Exceptional circumstances are, in the end, an intuitive decision based on material put before the court.  In this case, even taking each of these propositions at its highest, each of the matters referred to by Mr Williams, the test of exceptional circumstances, in this case, is not met.  When one takes into account that the trial is effectively imminent, that the accused has a number of problems in his history which would militate against the grant of bail in any event, even if they are not as significant as the Crown would suggest, when one puts all of them together there is no basis here for the grant of bail. Accordingly, the application is refused.