Tran v Director of Public Prosecutions
[2004] VSC 296
•9 August 2004
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1505 of 2003
IN THE MATTER of the Bail Act 1977 and
IN THE MATTER of the Crimes Act 1958 and
IN THE MATTER of an application for bail by LONG TANH TRAN
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JUDGE: | Redlich J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 July 2004 | |
DATE OF JUDGMENT: | 9 August 2004 | |
CASE MAY BE CITED AS: | Tran v Director of Public Prosecutions | |
MEDIUM NEUTRAL CITATION: | [2004] VSC 296 | |
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Application for bail – Crown case based upon circumstantial evidence – Innocent hypotheses – Provisional view as to strength of Crown case – Delay before trial – No exceptional circumstances.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr W. Morgan-Payler Q.C. | Ms K. Robertson, Solicitor for Public Prosecutions |
| For the Applicant | Mr G. Mullaly | Victoria Legal Aid |
HIS HONOUR:
The Applicant, who is presently in custody awaiting trial on one count of murder, by application dated 22 July 2004, seeks bail. The presentment filed by the Director of Public Prosecutions contains a count that the Applicant together with six other accused murdered James Huynh at South Yarra on 8 July 2002. Two of the Applicant’s co-accused are further presented on counts that they murdered Viet Huynh and Nam Huynh at South Yarra on the same date.
The Director of Public Prosecutions opposes the granting of bail on the grounds that no exceptional circumstances have been established and that, if granted, witnesses might be interfered with.
The Applicant is 22 years of age and has no prior convictions. He resides with his parents in Footscray. He was taken into custody and charged with the murder of James Huynh on 28 May 2003. By that time committal proceedings were already in progress involving a number of defendants who, together with the Applicant, were subsequently committed for trial on 19 August 2003 for the murder of James Huynh.
The facts relating to these charges have been set out in some detail in the Affidavits filed in relation to this Application. A violent altercation occurred in The Salt nightclub at about 3.00 am on the morning of 8 July 2002. Two groups of men were involved, one being members of the victims’ group so described in the Affidavit in support of this Application, and one being members of the group which included many of the accused. The Applicant contends that he was not a member of either group. Although it was not referred to in the Affidavit in support, it was not disputed before me that the Applicant had attended The Salt nightclub with the co-accused Quang Tran. The Crown contends that the Applicant became aware that Quang Tran had been injured in the course of the fight in the nightclub. Both groups were ejected; the victims’ group leaving via the entrance into Claremont Street, and the accuseds’ group leaving via the exit into Daly Street. According to the Affidavit filed in support of the Application, the Applicant also exited The Salt nightclub into Daly Street at about the same time. The victims’ group made its way into Daly Street where they were confronted by the accuseds’ group and another fight erupted. The Applicant told police in an interview on 8 July 2002 that he was in Daly Street outside the nightclub at the time of fighting between the two groups. In Daly Street, the deceased, James Huynh, sustained a serious wound to the chest which caused substantial bleeding. He and the deceased, Viet and Nam Huynh and at least one other from the victims’ group were pursued north in Chapel Street to its intersection with Alexandra Avenue. At a bus stop in Alexandra Avenue near that intersection, the deceased, James Huynh was further attacked by the accuseds’ group with bladed weapons, and he subsequently died of those injuries. The Applicant’s vehicle was observed twice near the bus stop a short time before the deceased James Huynh was killed. The Crown contends that that attack was murderous. The other deceased, Viet and Nam Huynh were driven to escape the danger posed by the accuseds’ group by jumping into the Yarra River where they subsequently drowned. The Crown contends that the chase was conducted both on foot and via vehicle by the accuseds’ group. A number of participants were armed with bladed weapons. Those weapons were not recovered. There were stains on the carpet of the boot of the Applicant’s car, which may have been human blood. Initial analysis of those stains did not confirm this, and the Applicant’s car and those stains are presently the subject of further scientific examination and analysis.
The Director acknowledges that the state of the evidence does not allow the prosecution to identify with accuracy either the total number of participants involved in the pursuit of the deceased, or how many weapons were used or what the precise actions of each accused were.
The Crown also relies on the following further matters which are largely in issue on this application. Video surveillance footage of Daly Street, taken by the security camera of The Salt nightclub, together with other circumstantial evidence, establishes that the Applicant’s car was parked in Daly Street. This footage, it is said, shows the boot of the Applicant’s car being opened. The removal of items from the boot, and one of the males returning from the car to the front of the nightclub carrying a weapon believed to be a sword. The Applicant told investigators that no other person had access to the keys to his vehicle on the night in question. The Crown contends that the weapons used to assault the deceased, James Huynh, were removed from the Applicant’s vehicle. The Applicant told police he got into his car which had been parked close to the front of the nightclub, and drove around to locate his friends, in particular Paul Le and Paul Scanlan. He drove north along Chapel Street and across the bridge, over the Yarra, into Richmond and then back to the area near the intersection of Chapel Street and Alexandra Avenue. He claimed that whilst in the vicinity of the intersection, two men, whom he did not know, and who had blood on their clothes, got into the back seat of his car. He was told to turn into Chapel Street and at some stage he was told to stop. The two men got out and he drove off in the direction of the Como Hotel where he was subsequently apprehended by police. The blood of the deceased, James Huynh, was located on both of his shoes, on his trousers and in the rear of his vehicle. A scientific analysis of the blood on his shoes and trousers indicated that the Applicant must have been in close contact with the deceased, James Huynh, whilst he was being attacked. The blood spatter present on the Applicant’s shoes was said to have been transmitted at medium to high velocity from the source, which at times was within one metre of the Applicant and from a source low to the ground. The blood spatter on the Applicant’s trousers was said to have been transmitted at low to medium velocity and from a source two to three metres away. When interviewed by investigators on 8 July 2002, the Applicant denied observing or being present during any assault upon the deceased. The blood found on the Applicant’s shoes and trousers was not explained by any version of events provided by the Applicant.
The Crown case against the Applicant included an allegation the accused made a false denial borne of a consciousness of guilt, when he told the investigators that he did not know the identity of the persons who had got into his car. The Crown submits that the circumstantial evidence permits the inference to be drawn that the Applicant lied to the investigators in making such a claim.
Section 4(1) Bail Act 1977 provides that any person accused of an offence is entitled to a grant of bail. But notwithstanding this provision, bail shall be refused for a person charged with murder, unless it is established that exceptional circumstances exist – Sections 4(2)(a) and 13. If exceptional circumstances are made out, the Court is required to refuse bail if satisfied that there is an unacceptable risk that the accused, if released on bail, will commit any of the acts which are prohibited by s.4(2)(d) of the Act.
Various hypotheses, which might explain the blood stains on the Applicant’s clothing, were explored in the course of Mr Mullaly’s submission on behalf of the Applicant. It was submitted that the deceased’s hand, that is James Huynh’s hand, had been cut during the course of the assault in the nightclub and that the first attack upon the deceased outside the nightclub, in which the deceased had been seriously wounded, had caused blood spatter. It was contended that either of those events might account for the blood on the Applicant’s shoes and trousers. I was referred in some detail to the scientific evidence given at the committal proceedings, some of which I have already referred to, which dealt with the blood spatter found on the Applicant’s clothing. I was informed that there was no direct evidence that the Applicant was in the immediate vicinity of the deceased at the time, when he was first seriously assaulted outside the nightclub, but that there was evidence that the Applicant was seen outside the nightclub in Daly Street after the accuseds’ group had exited the nightclub. My attention was directed to evidence, subsequently confirmed by my examination of photographs, with which I was provided, that the assault on the deceased outside the nightclub probably produced blood spattering to the footpath and surrounding cars.
The Applicant’s car, although seen in the vicinity of the intersection where the deceased James Huynh was killed, had, Mr Mullaly submitted, departed the scene before a red car returned, from which assailants alighted, who were said to have completed the murderous attack upon the victim. There was evidence, counsel for the Applicant contended, that he had been flagged down by persons at the intersection.
In reply Mr Morgan-Payler QC, who, together with Mr Southey, appeared for the Director of Public Prosecutions, submitted I must take the Crown case at its highest. It was submitted that the evidence upon which I should act was that the Applicant went to the club with his friend, the co-accused, Quang Tran. Quang Tran was assaulted inside the nightclub and left the nightclub angry. The Applicant accompanied him. Weapons were removed from the boot of the Applicant’s car.
Neither party invited me to view the video of what was said to be the Applicant’s car outside the nightclub. For the purpose of this Application I should act upon the evidence placed before me as to what the video reveals.
Mr Morgan-Payler further submitted that the nature of the blood stains on the Applicant’s shoes and trousers were consistent with the Applicant being present at the time the deceased, James Huynh, received serious injuries, close to the intersection of Alexandra Avenue and Chapel Street, whilst lying on the ground. Although Mr Morgan-Payler did not say so in terms, the suggestion was that these blood stains are inconsistent with having been caused during the assault on James Huynh outside the nightclub, or as a consequence of a cut to his hands sustained in the nightclub.
The Applicant’s car it was contended, was used to assist two of the assailants to leave the scene where the deceased was murdered. It was submitted that the Applicant’s interview, in which he denied seeing the deceased assaulted, was significant, as was his inability to account to the police for how he came to have blood on his shoes and trousers. The circumstantial evidence, it was submitted, established that the accused was untruthful when he denied knowing the identity of the persons who got into his car. It was submitted that the Crown case could be put on the basis that he was a principal, an aider and abettor or one who had joined in a common criminal enterprise giving rise to a reasonable possibility that death or serious injury might result. The Crown case was said to be persuasive.
In addition to the suggested weakness of the prosecution case, the Applicant also relied upon the delay since the Applicant had been placed in custody. The delay when considered in combination with the inadequacy of the prosecution case was said to constitute exceptional circumstances. Re: Application for bail by Whiteside[1]. Exceptional circumstances can be established by a combination of factors including delay though none of those factors alone may do so. Cox v R[2].
[1][1999] VSC 413.
[2][2003] VSC 245.
As a consequence of pre-trial hearings in September, the trial date has been fixed for 17 January 2005. It was submitted that the delay before the Applicant’s trial was unacceptable and inordinate, the Applicant having been in custody since 28 May 2003. Mr Mullaly submitted that a period of one year and eight months in custody before trial was unacceptable and that I should also take into account that the Applicant had had such matters hanging over his head for a further 12 months between the time of his initial interview in July 2002 and the time that he was charged in May 2003. In reply it was submitted on behalf of the Director that the Applicant’s trial effectively commences on 27 September 2004 when he will be arraigned and the pre-trial arguments heard. It was submitted that a period of 16 months in custody should not be viewed as inordinate having regard to the seriousness of the charge and the fact that it was a trial involving multiple accused with multiple counts arising from a lengthy and complicated investigation. In reply Mr Mullaly submitted that the trial should not be regarded as commencing until 17 January 2005.
Some of the authorities referred to in Bourke’s Criminal Law Victoria[3] demonstrate substantial delay in the hearing of a charge of murder has, on some occasions in conjunction with other matters, been regarded as constituting exceptional circumstances. In other cases referred to the contrary conclusion was reached. In Director of Public Prosecutions v Cuenco[4] Warren CJ held that a delay of 18 months before trial in conjunction with reasonable prospects for a successful defence and where the accused had no criminal history, an impressive work record, family support and ties to the community did not constitute exceptional circumstances. Beach J arrived at the same conclusion on similar facts in Director of Public Prosecutions v Shentzer[5]. By contrast, Warren J in Re: Whiteside[6] upon which the Applicant relies, held on facts not dissimilar to the present that exceptional circumstances had been made out, though it was material that the informant did not oppose bail if exceptional circumstances were demonstrated.
[3]Butterworths at [220, 020.10.10].
[4][2003] VSC 485.
[5][2002] VSC 217.
[6]Footnote 1.
In Director of Public Prosecutions v Bernath[7] Williams J considered a number of decisions of this Court in which a delay before trial was submitted to constitute exceptional circumstances whether alone or in conjunction with other factors. These authorities show that a delay that in one circumstance may appear inordinate will not be so characterised in another and that little assistance can be gained from a comparison of the factual matrix of different cases.
[7][2003] VSC 304.
Counsel for the Applicant also relied upon the absence of any prior criminal history, that there was no risk of the Applicant offending whilst on bail, that the Applicant came from a stable home environment, the Applicant was employed assisting in the family’s grocery shop and that he was also in the course of completing his studies at RMIT in Business Administration. His parents were prepared to offer their substantial interest in the flat in which the family resides as security in the event that the Applicant was granted bail. None of these matters were contested by the Director. I am satisfied that there is neither a sufficient risk of the Applicant absconding or of him offending whilst on bail.
As to the ground alleging that the Applicant might interfere with witnesses, there have been incidents concerning prosecution witnesses which support the conclusion that attempts have been made to influence the nature of the evidence that they might give. It was accepted by the Crown that there was no evidence to suggest that the Applicant had been connected to any of those incidents. The learned prosecutor properly limited his submission to the proposition that in a trial of this nature involving a large number of civilian witnesses many of whom are known to one another and to the accused or who are capable of being sought out by one another, a risk exists that there will be attempts to influence witnesses in relation to the evidence that they will give. It was submitted that as the trial was due to commence in September such a risk should be avoided.
A tenuous suspicion or fear of the worst possibility if the offender is released, will not be sufficient to constitute an unacceptable risk. Haidy v Director of Public Prosecutions[8]. What must be established is that there is a sufficient likelihood of the occurrence of the risk which, having regard to all relevant circumstances, makes it unacceptable.[9]
[8][2004] VSC 247 at [15].
[9]Ibid at [16].
Absent any evidence that the Applicant has been or would be disposed to interfere with witnesses, it could not be said that there is a sufficient degree of risk to make it unacceptable. As I understood counsel for the Director at the conclusion of his submission, the basis upon which bail should be refused was that exceptional circumstances had not been established.
The Applicant is one of a number of accused, all of whom are charged with the murder of James Huynh. Neither party in the Application before me has attempted to examine the evidence of the actions of the Applicant’s co-accused that may either advance or negate the Crown’s contention that the Applicant acted in concert or as an accessory, or pursuant to a joint criminal enterprise where death or serious injury was a foreseeable result.
On a bail application, the Court is dependent to a large degree on the Affidavits filed for the purpose of assessing the cogency of the Crown case. Here, the depositions are voluminous. I am mindful that the practice in this Court for many years has been that the Court refrain from giving any detailed assessment of the prosecution case in applications such as this. Any view formed must be a tentative one as it will be based on a less than complete grasp of the detail of the case. As Gillard J observed in Memery v The Queen[10]:
“…..The task is indeed a difficult one but the Court must make some assessment assisted as it is by counsels’ submissions. It must, of necessity, be a provisional view only……..”[11]
[10][2000] VSC 495.
[11]Ibid at [26].
It is trite to observe that where the Crown case is based entirely on circumstantial evidence a conviction depends upon the Crown’s capacity to exclude all reasonable hypotheses consistent with innocence. In Mr Mullaly’s comprehensive submission, it was urged that the Applicant has a good defence as the Crown could not disprove all reasonable hypotheses consistent with innocence. The submissions will no doubt be developed before the jury during the course of the trial.
A sufficiently weak Crown case can constitute exceptional circumstances. Some analysis and assessment of the circumstantial evidence to which the parties have referred me is called for. The stronger the prosecution case, the more cogent other circumstances said to be exceptional would need to be.
Where s. 13 is applicable and upon scrutiny of the Crown case it appears that it has reasonable prospects of success and there is an absence of other circumstances which can be characterised as exceptional, bail will not ordinarily be granted.
Based upon the arguments advanced before me, it appears that the jury will have to determine whether the Applicant’s presence outside the nightclub; the removal of weapons from his car, if that be what the video reveals; the presence of the Applicant in his motor car at the scene of the murder on at least two separate occasions; the use of his vehicle to leave the scene by two of those who apparently attacked the deceased; the disappearance of the weapons used to attack the deceased; the arrival of the Applicant in his motor vehicle outside the Como Hotel, where other accused were together, and the bloodstains on the Applicant’s clothes, might reasonably be explained by a series of innocent hypotheses.
My appraisal of the evidence to which I was referred and the submissions made leads me to conclude that the Crown has reasonable prospects of demonstrating that the competing hypotheses raised by counsel for the Applicant are untenable. That is to say on the arguments as presented the Crown’s case cannot be described as weak. My present view is that the strength of the prosecution case and the relatively short period of delay before the commencement of the trial do not constitute exceptional circumstances.
The Applicant will not be precluded from renewing his Application for bail following the pre-trial argument in September. The legal basis upon which the Applicant is to be presented will be known and a more detailed understanding of the whole of the Crown case may demonstrate the asserted weaknesses in it.
The Application for bail is therefore refused.
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